Bodney v Bropho

40 Section 61(1) of the old Actprovided that'a person or persons claiming to hold the native title either alone or with others' was permitted to make an application for a determination of native title. Section 61(3) of the old Act added: 'An application made by a person or persons claiming to hold native title, or to be entitled to compensation, with others must describe or otherwise identify those others. In doing so, it is not necessary to name them or to say how many there are.'

41 An application that identifies the 'others' without naming them will presumably be one that provides the criterion by which a person's claim to be one of those others can be tested. It seems to me that in most if not all cases it will be apparent on the face of the application if it complies with this requirement. In this respect the section is significantly different from s 61 of the new Act.

42 The Amending Act introduced the concept of a native title claim group and the requirement that an applicant be authorised by the native title claim group. Section 61(1) of the new Act includes among the persons permitted to make an application for the determination of native title: 'A person or persons authorised by all the persons (thenative title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.'

Section 61(4) of the new Act adds: 'A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.' 43 Section 251B states what is required for a person or persons to be authorised by all the persons in the native title claim group: 'For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.'

44 It will generally not be possible to determine from the face of an application whether, as a matter of fact, the applicant is authorised by the relevant native title claim group. While, in compliance with s 62(1)(v), an application may contain a statement of the basis on which the applicant is authorised, establishing the accuracy of the statement, should it be challenged, is a matter for substantive determination based on evidence.

Section 84C of the NTA 45 Section 84C of the NTA, omitting headings and notes, is as follows: '(1) If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

(2) The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

(3) The Registrar of the Court must advise the Native Title Registrar of the making of any application under subsection (1) and of the outcome of the application.

(4) This section does not prevent the making of any other application to strike out the main application.' 46 Unfortunately neither the explanatory memorandum for the Amending Act nor the Minister's second reading speech give any insight into the reasons for adding s 84C to the NTA and why it was not regarded as sufficient to rely on the general rules and practices of the Court concerning summary dismissal, as for instance O 20 r 2(1)(c) of the Federal Court Rules. Nevertheless, it is not difficult to infer from the scheme and purpose of the NTA the reasons for specifically targeting applications that fail to comply with the basic requirements for applications set out in ss 61, 61A and 62. 47 Native title determination applications deal with the concept of customary law and in most cases are made on behalf of a number of people. It is not surprising therefore that they generally involve more than usual practical and legal difficulties including, not uncommonly, disputes between competing claim groups or within the claim group. There can be considerable difficulty in resolving those issues. The difficulties are compounded if there is uncertainty about who is claiming native title in the land that is the subject of the application or if there are multiple claimants asserting essentially identical interests. To some extent, s 61 of the old Act anticipated these problems and attempted to address them by requiring the applicant to describe or otherwise identify the persons with whom he or she claimed to hold native title. It did not, however, resolve the problems.

48 On 1 December 1997 during the Senate debate on the Bill that led to the Amending Act, Senator Minchin, the Special Minister of State and Minister Assisting the Prime Minister stated: 'The most widespread and universally accepted complaint about the current system, from Aborigines in particular, is the number of frivolous unsubstantiated claims in the system which are denying justice to those who are genuine, serious claimants who ought to have their claims heard as expeditiously as possible.' [Australia, Senate, Debates, 1 December 1997, p 9932]

Section 61 of the new Act with its requirement that applications be brought by authorised representatives of the relevant native title claim group was clearly designed to address this problem. The approach is buttressed by s 84C which ensures that a dispute as to whether the application meets the criteria in s 61 may be the subject of strike out motion which must be considered before any further steps are taken in the proceeding. In passing I note that, in relation to applications made after the commencement of s 61 of the new Act, s 66B takes up where s 61 leaves off by providing a mechanism whereby a member of the claim group can apply to have the applicant replaced if the applicant is no longer authorised by the group or has exceeded his or her authority.

49 In the context of questions about the proposed s 84C and the possibility that applications might be summarily dismissed, Senator Minchin said:

At this application stage, the application is dealt with on the face of it. The detail required is not methodically or judicially tested in any way. The claim technically has to meet them, but they are not tested. Having the information is all about ensuring that mediation of claims, which is the next stage, can succeed, in the hope that agreements can be reached and we do not have to spend five years in court.

That is one of the problems. As those involved on both sides - including the Aboriginal side - will tell you, it is difficult to have effective mediation when it is not clear what land is being claimed, what rights are being claimed, et cetera. Given that there is effectively no rigorous test applied at the application stage it is not unreasonable that there be the capacity to seek a strike-out on the grounds that the basic requirements set down for applications have not been met - remembering, as I say, that claims can be amended in the process or, if they are struck out, they can be resubmitted in order that they comply with basic requirements.' [Australia, Senate, Debates, 1 December 1997, p 9932]

50 Senator Minchin also stated that it was government policy that such a strike-out application should be heard before the claim could proceed any further; Australia, Senate, Debates, 1 December 1997, p 9914. However, there was no suggestion that strike-out applications under s 84C were different in substance from strike-out applications commonly made in proceedings before the courts such as under O 20 r 2 of the Federal Court Rules. To the contrary, the Minister commented that the mechanism was 'a normal part of the law' and that the section 'simply says that it is open to other parties to apply to the Federal Court in the normal way for a strike-out of the application'; Australia, Senate, Debates, 1 December 1997, p 9931. In my opinion it follows that strike-out applications under s 84C should be approached in the same way as applications under O 20 r 2. 51 It follows that, as with any strike-out application, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made; Williams v Grant [2004] FCAFC 178 ('Williams v Grant') at [48]-[49]. However, as Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, while a litigant must not be deprived improperly of the opportunity for trial, summary dismissal is not reserved for cases where argument is not necessary to establish the futility of the case: 'Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' 52 It may also be appropriate to rely on evidence to support the extensive argument to which the Chief Justice referred. For example, in the context of a native title determination application, if evidence were to establish unequivocally that an applicant had not been authorised by the native title claim group then summary dismissal of an application for failure to comply with s 61 may be justified. In this regard I note that O 20 r 2(2) permits the Court to receive evidence on the hearing of an application for an order under subrule (1).

Amending Act - transitional provisions 53 As a comparison of s 61 of the old Act and s 61 of the new Act shows, an application that complies with the requirements of s 61 of the old Act is unlikely to comply with s 61 of the new Act. In the absence of transitional provisions the amendments might have made the vast majority of applications vulnerable to striking out under s 84C. However, Schedule 5 to the Amending Act contains a number of relevant transitional provisions. These provisions include cl 21, whichstates that s 84C applies irrespective of whether the main application was made before or after the section commenced. The clause further provides that if the main application was made before s 84C commenced, the reference in s 84C to s 61 or s 62 'is a reference to section 61 or section 62 of the old Act'.

Consideration of applications under s 84C 54 It will be noted that s 84C (2) requires the Court to 'consider' the application for a strike-out before taking any further step in the proceedings. Before the primary judge, counsel for the State of Western Australia submitted that this did not preclude the Court, having considered the merits of the application, deferring its determination in an appropriate case. It was not necessary for his Honour to decide the point as he was of the view that all the Bodney applications had failed to comply with s 61 and that there was 'no good purpose' in allowing the applications to remain on foot. The point was, however, the subject of recent consideration by the Full Federal Court in Williams v Grant at [56]-[59], where Lander J (with whose reasons North J and Dowsett J separately agreed) discussed s 84C in some detail and concluded that the Court had power to defer determining a strikeout application in an appropriate case. I respectfully agree with Lander J's reasons and conclusion on this point. In my view it was open to the primary judge to defer determination of the strike-out applications if he had decided that this was the appropriate course.

55 All five Bodney applications were made before the commencement of the Amending Act. Despite this, the primary judge held that only three were to be considered under the old Act; the other two, having been amended after the commencement of the new Act, had to meet the requirement of s 61 of the new Act. There appears to have been no discussion of this issue before the primary judge; indeed his Honour noted that the parties accepted the qualification. His Honour observed, however, that his view was consistent with the views of O'Loughlin J in Quall v Risk [2001] FCA 378 ('Quall')at [65], followed by Mansfield J in Dieri People v State of South Australia (2003) 127 FCR 364 at 369, at [18]. 56 The three Bodney applications that had never been amended were WAG 138 of 1996 ('Wanneroo Road application'), WAG 139 of 1998 ('Burswood Island application') and WAG 140 of 1998 ('Swanbourne application'). In all of these applications Mr Bodney was named as the sole applicant. However, each application stated that the application was made on behalf of the applicant and others. Those others were identified as 'Ballaruk People - Bodney Family Group'. The primary judge observed that this description 'does not provide any meaningful description or identification of the people who fall within the group.' For this reason his Honour held that the applications did not comply with the requirement of s 61(3) of the old Act, that the application identify the people who are said to hold native title with the applicant, and for this reason they should be struck out.

57 The other two applications, WAG 137 of 1998 ('Hartfield Park application') and WAG 149 of 1998 ('Main Application') had both been amended after the commencement of s 84C on 30 September 1998. His Honour held that, as a consequence, they were required to comply with s 61 of the new Act; see [48] above.

58 As originally drafted, the Hartfield Park application had stated that it was made on behalf of the applicant (Mr Bodney) and others who were described as the 'Bodney Family Group'. In Schedule A of the amended Hartfield Park application the description of the claim group includes the following: 'the Native Title Claim group known as Ballaruk and Didjarruk. The claim group consists of the biological descendants between Melba Armitage (Bluffie) and William Bodney (of their union)'. There follows a reference to the claim being made on behalf of the Bodney family group. Melba Armitage and William Bodney were the parents of Mr Bodney. In Schedule R to the amended application, there is a statement that Mr Bodney is the eldest surviving male member of the claim group and as such is authorised by traditional laws and customs to deal with such matters as the application. 59 There was evidence before the primary judge that Mr Bodney was one of five children, several of whom have living descendants. There was also affidavit evidence of Margaret Gentle and William Warrell, apparently accepted by his Honour, concerning Mr Bodney's wider family. Margaret Gentle, who has children, grandchildren and great-grandchildren, claimed to be Mr Bodney's first cousin. Mr Warrell's evidence gave information about presently living descendants of children born to Melba Armitage (Mr Bodney's mother) from a relationship with a Jack Coomer. His Honour also referred to Mr Bodney's answers to questions put to him on cross-examination in which he referred to 'thirty senior members' of the Ballaruk Aboriginal Corporation and stated 'they're all family'. 60 The primary judge found that the description of the claim group given in the amended application was inconsistent with other parts of the amended application and with Mr Bodney's own evidence. His Honour observed: 'It is clear, from the application itself, that Mr Bodney's claim is that the Aboriginal people who, at sovereignty, possessed native title rights and interests over the subject land were the group known as Ballaruk and Didjarruk. It is apparent from his own evidence that there are people, other than his siblings and their children, whom he regards as Ballaruk and Didjarruk.'

In his Honour's view Mr Bodney's evidence demonstrated that he: 'recognises that there is a body of people who are properly described as "Ballaruk and Didjarruk people" and who are not descendants of his own parents, Melba Armitage and William Bodney. On his own case, it was the Ballaruk and Didjarruk people who held native title rights and interests at sovereignty. Mr Bodney claims those rights and interests passed by biological descent; he says to himself and his immediate family … However, on Mr Bodney's own logic, any native title rights and interests held at sovereignty by the Ballaruk and/or Didjarruk people must equally have passed to their other descendants.' 61 His Honour concluded that the application amounted to the making of a claim by a sub-group of the relevant native title group and for this reason Mr Bodney had failed to establish authorisation under either paragraph (a) or paragraph (b) of s 251B. His Honour found that the Main Application suffered from the same authorisation problem as the Hartfield Park application. Because the Hartfield Park application and the Main Application did not comply with these authorisation provisions, his Honour held that they should be struck out.

62 His Honour summarised his conclusion in relation to all five applications as follows: 'In the present case, I have reached a clear conclusion that each of the Bodney applications fails to comply with the requirements of the relevant form of s 61. The situation cannot be cured by further evidence; the deficiencies are contained in the applications themselves. No good purpose would be served by allowing the Bodney applications to remain on foot. The only result of so doing would be further to complicate and prolong an already lengthy hearing.'

This appeal 63 On 17 October 2003 the appellant filed an amended notice of appeal in each of the Bodney applications stating that he appeals from the whole of the judgment of the primary judge. The appellant has not filed any application for leave to appeal, although at the hearing the respondent did not take issue with this failure. The hearing proceeded as a full hearing of an appeal from the decision of the primary judge. 64 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment of a single judge of the Court unless 'the Court or a Judge gives leave to appeal'. The judgment of the primary judge was undoubtedly interlocutory in that legally (if not practically) it did not finally determine the rights of the parties at issue in the proceedings; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767. 65 In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, a Full Federal Court followed a decision of the Full Court of the Supreme Court of Victoria in Neimann v Electronic Industries Ltd [1978] VR 431 which held that, on applications for leave to appeal, the two principal considerations are whether in all the circumstances: (a) the decision from which leave is sought is attended with sufficient doubt to warrant it being reconsidered by the Full Court; and (b) supposing the decision to be wrong, any substantial injustice would result if leave were refused. 66 In the circumstances (including that the appellant is not legally represented) my approach has been to proceed as if leave to appeal had been sought, to give the matter full consideration, and to refuse leave to appeal only if satisfied that the appeal could not succeed.

The first three grounds of appeal 67 Mr Bodney lists six grounds of appeal, the first three of which may be dealt with briefly. The first ground of appeal is that his Honour considered a strike-out motion brought by persons who were not party to the Bodney proceedings. The appellant points to the terms of s 84C(1) which provide that a strike-out motion may be brought by a party to the proceeding. This submission is unfounded and the ground of appeal must be rejected. The Court records show that on 19 August 2003 the primary judge ordered that the respondents in this appeal (the applicants on the strike-out motions) be joined as respondents to the Bodney applications. 68 The second ground of appeal is that the primary judge did not take into account that Mr Bodney is semi-literate, has little education or knowledge of the law and was not represented in the proceedings. While this position may impose on the Court an obligation to take particular care that the unrepresented litigant understands the proceedings (see, for example, Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445-447),there is no obligation on the Court, indeed it would be injudicious, to attempt to compensate fully for the disadvantage resulting from the lack of representation; there would be a grave risk of the Court being apparently or actually partisan. In any event, no evidence was brought to support this allegation. Indeed the nature of the proceedings before his Honour was such that the lack of representation was comparatively unimportant. The claim that the applications did not meet the requirements of s 61 of the NTA is something that his Honour could determine by his own examination of the applications as distinct from, for instance, a case that calls for forensic experience or skilled cross-examination. This ground of appeal cannot be sustained. 69 The third ground is that his Honour failed to have due regard to the religious rights and practices of the Aboriginal claimant group, contrary to s 116 of the Commonwealth Constitution. No question of any substance relating to Aboriginal beliefs and practices was in issue before his Honour. The question of whether the applications conformed to the requirements of s 61 is a technical question and no issue relating to s 116 of the Constitution was raised. In any event, the appellant did not press this ground at the hearing before the Full Court. This ground must be rejected.

The fourth to sixth grounds of appeal 70 The fourth, fifth and sixth grounds of appeal may conveniently be dealt with together. In one way or another, Mr Bodney complains (a) about the way in which the primary judge dealt with the evidence concerning the alleged inadequacies of the Bodney applications and their failure to comply with the relevant form of s 61 of the NTA; and (b) that his Honour failed to give him an opportunity to amend the applications on the basis of an unwarranted assumption that Mr Bodney would not be able to amend the applications to comply with the NTA or obtain legal assistance to do so. 71 Mr Bodney submitted that his Honour did not understand the evidence he gave about the Bodney family group and its relationship to the Ballaruk/Didjarruk people. The alleged misunderstanding appears to centre on the composition of the claimant group in all five applications. As Mr Bodney explained it at the appeal, his position seems to be that the traditional owners of the land subject to the applications were the Ballaruk and Didjarruk people, but that he and his siblings and their descendants are now the only living descendants of those traditional owners. This is why, he submits, the claims refer to the Bodney Family Group and, for this reason, the primary judge was in error in describing the claims as being made on behalf of a sub-group. 72 From the bar table Mr Bodney alleged that the affidavit evidence of Margaret Gentle and William Warrell was false and fraudulent and that, at the hearing before the primary judge, he did not have the opportunity to cross-examine the witnesses because they were not present in Court. He did not explain, however, why no evidence supporting his assertion that the evidence was false was put before his Honour, nor did he seek to adduce such evidence in the appeal. In submissions from the bar table, Mr Bodney also attempted to explain some of his answers on cross examination before Wilcox J as arising from a misunderstanding of what was put to him. Counsel for the respondent did not object to this explanation being offered, although Mr Bodney did not give any sworn evidence to support his explanation.

Nature of this appeal 73 The basis on which an appeal court may interfere with an interlocutory decision made by a trial judge exercising his or her discretion is governed by established principles. The Court is not entitled to substitute its discretion for that of the primary judge unless the primary judge made an error such as was described in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ: 'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.' 74 Where the decision relates to a matter of practice and procedure a court considering an appeal from such an order should exercise particular caution and grant relief sparingly; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Bright v Femcare Ltd (2003 ) 195 ALR 574 at 575 per Lindgren J.

Wanneroo Road, Burswood Island and Swanbourne applications 75 As far as the unamended applications are concerned, that is the Wanneroo Road, Burswood Island and Swanbourne applications, the problem identified by the primary judge was that they did not identify the persons with whom the applicant claimed to hold native title, as required under s 61(3) of the old Act. The primary judge was undoubtedly correct in his view that the description 'Ballaruk People - Bodney Family Group' was not sufficient to identify the other persons with whom Mr Bodney alleged he held native title or to enable them to be identified. The question then arises whether Mr Bodney could have amended his applications so that they conformed to s 61 and, if so, whether he should have been permitted to do so.

76 Although Mr Bodney did not specifically address the point in his submissions, there is little doubt that he was contending that as descriptions of the persons whom he claims hold native title in the subject land the terms: · Ballaruk people;

· descendants of Melba Armitage and William Bodney; or

are interchangeable; that is they all refer to the same body of people. It would seem then that it would have been possible for him to make the appropriate amendments. There is, however, no indication in his Honour's reasons that he turned his mind to that question. This may be because, as the summary of his Honour's conclusions quoted at [62] above suggests, his Honour was of the view that the applications could not succeed on their merits and therefore, as a matter of discretion, he should not give leave to amend. 77 Whatever the reason, the context in which the applications under s 84C were brought is highly relevant. Mr Bodney was an unrepresented litigant in proceedings where, as the primary judge noted, considerable evidence concerning the substantive claims had already been taken both in Court in Perth and 'on country'. While there is nothing to prevent Mr Bodney making new applications if his applications are dismissed, the evidence taken in this proceeding would not be evidence in any new proceeding. Moreover, the evidence on which his Honour relied was seriously disputed and the witnesses whose evidence was contrary to the position advocated by Mr Bodney were not cross-examined. In these circumstances, dismissing the applications without any overt consideration of whether leave to amend should be given leads me to infer, with respect, that there has been a failure to exercise discretion properly; see the comment from House v The King quoted at [73] above. Accordingly, I am of the view that his Honour's decision in relation to the Wanneroo Road, Burswood Island and Swanbourne applications should be set aside.

The Main Application and the Hartfield Park application 78 Before discussing his Honour's decisions in relation to the Main Application and the Hartfield Park application, I should address a preliminary issue concerning the application of the transitional provisions in clause 21 of Schedule 5; see [53] above.

Application of the transitional provisions in clause 21 of Schedule 5 79 The issue is whether the primary judge was correct in his view that the Hartfield Park and Main applications (together the 'amended applications'), having been amended since the commencement of the Amending Act, should be considered with respect to the requirements of s 61 of the new Act. As stated at [55] above, the primary judge noted that the position he accepted was not in contention between the parties and was consistent with the views expressed in Quall. 80 In Quall, O'Loughlin J referred to cl 21 and its provision that an application made before the Amending Act did not have to comply with s 61 of the new Act. His Honour commented that as there was no suggestion that the amendments to s 61 were retrospective he had no difficulty in accepting that interpretation and continued, at [63]: 'If, however, the applicant, as a matter of free choice, decided to amend the application by changing the composition of the claimants, … what then is the position? Is the applicant entitled to rely upon the fact that the application was lodged prior to 30 September 1998 and so ignore the provisions of the new s 61? Or does the act of amendment become a catalyst and so force the applicant to comply with the provisions of the new s 61. A literal reading of the note might suggest the former answer but other provisions of the legislation suggest the latter.' [emphasis added]

81 The native title determination that was the subject of the strike-out motion before O'Loughlin J in Quall had been amended three times after the commencement of the Amending Act. There was before his Honour, at the same time as the strike-out motion, an application for leave to amend it for a fourth time. The changes that these amendments made or proposed to make, to the application, in so far as they can be determined from the reasons of his Honour, are shown in the following table.

Application or amendment Date Applicant and capacity in which application made Description of 'others' or of the claim group Original application 29 September 1998 Mr Quall, 'on behalf of the applicant and others as claimants' Dangalaba Clan First amendment 6 September 1999 Mr Quall, authorised by 'claimants of the Native Title Group'. 8 named individuals including the applicant. All eight had the surname, Quall. Second amendment 27 September 1999 'Claimants of the Native Title Group who are members of the Dangalaba Clan have agreed to be the claimants and to represent the Dangalaba Clan.' As above Third amendment 25 November 1999 [some changes to language of above referred to but not set out in reasons of O'Loughlin J] As above Fourth amendment (proposed) Mr Quall sought leave to amend [no change mentioned] 'The native title claim group comprises the following descendants of Danggalaba Clan ancestors and constitutes the contemporary Danggalaba Clan according to Aboriginal law and custom.' - [there followed a list of names.]

82 The extent of the overlap (if any) between the names of the descendants of the Dangalaba Clan mentioned in the proposed fourth amendment and those mentioned in the first amendment is not clear from O'Loughlin J's reasons. It is not possible to tell if the amendments to the description of the claim group involved a change in composition of the group or rather a more detailed description of the same group. His Honour stated, however, that the identification of the claim group in the proposed fourth amendment was different from any other group that Mr Quall had previously identified and that, in particular, it contradicted the description of the group identified in his points of claim. He continued, at [58]: 'I find myself unable to identify, with any degree of certainty, the composition of the native title claim group that Mr Quall says he represents. As I have said, the information in his proposed amended application is at odds with his points of claim, with his accompanying affidavit, with his original family of eight and with the information in his bundle of documents called "Factual basis for the Native Title Rights and interests claim."'

83 Justice O'Loughlin concluded that Mr Quall's application did not comply with s 61 of the new Act. He stated that his consideration of the transitional provisions concerning the authorisation requirements of s 251B and the concept of a native title claim group, as defined in s 253, assisted him in concluding, at [65], that: '[W]hilst an original application that was filed before 30 September 1998 is to be considered against the provisions of the old s 61, an application that is amended after that date by changing the particularity of the claimants must comply with the provisions of the new s 61.' [emphasis added]

84 As Emmett J commented in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ('Wharton') at [29] it is not entirely clear what O'Loughlin J meant by 'changing the composition of the claimants' in the passage quoted above at [80]. As the above table in [81] above shows, it is not clear to what extent the amendments in Quall changed the composition of the native title claim group. The difficulty is enhanced by the expression, 'changing the particularity of the claimants', emphasised above at [83]. In any event, I agree with Emmett J's view at [28] that the provisions of the new Act and the transitional provisions concerning registration do not require 'a reading of item 21 that departs from its clear and unambiguous terms', and with his Honour's further comment at [29]: 'There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act. If there were an amendment to that effect, the application as amended might fairly be characterised as a fresh application.' 85 In other words, for a change in composition of the claim group to justify treating the application as a fresh application made after the commencement of the Amending Act (with the consequence that it is required to comply with s 61 of the new Act), the change would need to be such that, in Emmett J's words, the claim group is 'different in substance' from the group originally named. In my view, however, an amendment that provided further particulars of the claim group, as opposed to one that changed the composition of the claim group, would not justify departing from the clear words of cl 21 of Schedule 5. As the analysis of the successive amendments in Quall shows however, there may be some difficulty in distinguishing between amendments that change the composition of the claim group and those that refine the description or provide further particulars; see [81] - [82] above. 86 The changes in the description of the claim group made to the amended applications are shown in the following table: Application Schedule A before amendment Schedule A after amendment Hartfield Park 'Bodney Family Group' 'The applicant claims on behalf of the native title claim group known as Ballaruk and Didjarruk. The claim group consists of the biological descendants of Melba Armitage (Bluffie) and William Bodney (of their union). I "Corriee" Christopher Robert Bodney make this claim on behalf of the Bodney family group and myself, our children, their children and their children's children to their traditional lands in accordance with aboriginal lore and it's (sic) code of ethics. The changes being: The inclusion of the word Didjarruk, which is part of the biological relationship of the Ballaruk clan Group A connection of the two bloods of the aboriginal society's (sic) the prior owners of the Whadjuk territorial boundary's (sic) before British sovereignty.' Main application 'Ballaruk People 'The applicant claims on behalf of the Native Title Claim group known as the Ballaruk and Didjarruk People. The claim group consists of the biological descendants of the union between Melba Armitage (Bluffie) and William Bodney. Specifically excluded from the claim group is William Lucas Bodney.' Bodney Family Group'

87 As with the application in Quall (see [82] above), it is difficult to tell from these descriptions whether the amendments result in a change in the composition of the claim group or merely the refining of the description and the provision of additional detail. 88 The primary judge considered the evidence not only of Mr Bodney but also of Margaret Gentle and William Warrell. On the basis of this evidence his Honour formed the view that the claimant group described in the amended applications was a substantially different and wider group than the 'Bodney family', the group originally described but that the claim was made only on behalf of a subgroup, the biological descendants of Mr Bodney's parents. Although his Honour did not express it in this way it would seem that he was of the view that on the evidence before him Mr Bodney's amendments were not particularisations of the claim groups but rather changes in the composition of those groups. While before us Mr Bodney denied that this was his intention, it was not only open to the primary judge to make those findings but also necessary for him to do so in order to decided the effect of the Amending Act transitional provisions (see [53] above). For the reasons expressed in [73] above I would not interfere with those findings. On the basis of those findings I agree with his conclusion that the amended applications are required to comply with s 61 of the new Act. 89 That conclusion raised the question of authorisation. His Honour concluded that the amended applications did not comply with s 61 because Mr Bodney had failed to establish authorisation in either of the ways contemplated by s 251B. In the comment quoted above at [62] his Honour stated that the problem could not be cured by further evidence (or presumably by amendment) because 'the deficiencies are contained in the applications themselves'. There are undoubtedly difficulties with the amended applications, but in view of his Honour's conclusion that the applications could not be salvaged it is appropriate to examine those deficiencies in some detail. 90 For reasons expressed above at [76], I see no reason why the problem with the description of the claim group could not have been cured by amendments which may well have resolved the authorisation problem. I stress that, for the purpose of a strike-out application, resolving the authorisation problem would not necessarily involve Mr Bodney proving that such authorisation had been granted but would have involved a coherent claim to have been authorised. However, as I understand it, his Honour's view that the applications could not be salvaged arose from what appear to be inconsistent claims made by Mr Bodney including the following: (a) at the time of sovereignty, the Ballaruk and Didjarruk people held native title rights over the subject land; (b) the native title rights referred to in (a) passed by biological descent and are now held only by the direct descendants of his father and mother, William Bodney and Melba Armitage; (c) the people presently described as Ballaruk and Didjarruk people included not only the descendants of William Bodney and Melba Armitage but also others referred to in [59] above. His Honour concluded that on Mr Bodney's own logic, (b) and (c) above are inconsistent. With respect, this is not necessarily so. Mr Bodney was clearly having difficulty articulating the finer points of his claim and it might be, for example, that his claim was that the interests referred to in (a) have passed only to the persons referred to in (b) because these are the only descendants of those in (a) who still observe customary law. 91 In any event, is not clear to me that Mr Bodney was actually making the claim in (c). Both before the primary judge and on the hearing of the appeal his answers when questioned on this point are somewhat confusing. In his reasons for judgment, the primary judge quoted at length from the evidence given by Mr Bodney in the course of cross-examination. Counsel for the respondents at the appeal was not able to point to any aspect of that evidence that indicates Mr Bodney was making the claim in (c). Before us, Mr Bodney claimed that his answers on cross-examination before the primary judge had been misunderstood and that the only members of the Ballaruk and Didjarruk peoples still living are his immediate family. While this may be regarded as intrinsically unlikely, this is not relevant to the issue of whether Mr Bodney should have been given leave to amend the Hartfield Park and the Main applications. 92 In these circumstances, and also for the reasons set out in [77] above in relation to the Wanneroo Road, Burswood Island and Swanbourne applications, I would grant Mr Bodney leave to appeal and allow the appeal. I agree with the orders proposed by Branson J. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate: Dated: 24 August 2004 Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Christine Cooper of the South West Aboriginal Land and Sea Council Aboriginal Corporation