branson j
15 I have had the advantage of reading in draft the reasons for judgment of Stone J. I hereafter use terms and expressions as defined by her Honour. I agree with her Honour's reasons for judgment subject to the same qualification as has been identified by Spender J. In my view it is unnecessary, and also undesirable in the circumstances of this appeal, for this Court to reach a concluded view on whether the learned primary judge was right to conclude that the Main application and the Hartfield Park application were required to comply with s 61 of the new Act.
16 I consider it appropriate to make the following observations.
17 The primary judge approached the strike‑out applications in respect of the previously amended applications (ie the Hartfield Park application and the Main application) on the basis that it was necessary for them to comply with s 61 of the new Act. His Honour noted that the parties accepted that this was the correct approach. I doubt that his Honour intended to convey that Mr Bodney, who appeared before the primary judge (and before us) without legal representation, made any binding concession in this regard. However, his Honour did not find it necessary to determine whether, as a result of the coming into operation of the Amending Act, the Hartfield Park application and the Main application were required to comply with s 61 of the new Act.
18 The issue of whether the Hartfield Park application and the Main application are required to comply with s 61 of the old Act or s 61 of the new Act is, in my view, to be resolved by determining when the two applications were respectively made within the meaning of item 21 of Schedule 5 to the Amending Act. I do not understand the weight of the authorities to be consistent with a contrary proposition.
19 In Quall v Risk [2001] FCA 378 O'Loughlin J at [63]-[65] concluded that where an applicant, as a matter of free choice, decided to amend an application made under the old Act by changing the composition of the claimants, the application was thereafter required to comply with s 61 of the new Act. Stone J has carefully analysed his Honour's decision in Quall v Risk. I agree with her Honour's analysis. I note that in Branfield v Wharton [2004] FCAFC 138 the Full Court (Ryan, Finn and North JJ) at [14] acknowledged that there is scope for questioning the correctness of the principle established by Quall v Risk.
20 In Dieri People v South Australia (2003) 127 FCR 364 ('Dieri People') Mansfield J at [18] expressed the view, choosing his words carefully it seems to me, that the conclusion of O'Loughlin J in Quall v Risk was consistent with decisions requiring amendments of a native title determination application made after the Amending Act to comply with the new Act. Mansfield J referred to Daniels for the Ngaluma People v State of Western Australia [1999] FCA 686; Eora People ‑ Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 and Donnelly v Minister for Land and Water Conservation [1999] FCA 1581. I note that in Daniel for Ngaluma People v Western Australia RD Nicholson J noted at [17] that it was not contended by any party in that case that the transitional provisions of the Act (presumably the Amending Act) assisted consideration of the issues to be determined. In Eora People - Brown v NSW Minister for Land and Water Conservation Madgwick J concluded that it would be an inappropriate exercise of the Court's discretion in that particular case to permit the applicant to amend her application unless the application as amended would comply with the new Act. The native title determination application to which Hely J gave consideration in Donnelly v Minister for Land and Water Conservation was one which thetransitional provisions contained in Schedule 5 to the Amending Act required to be treated as an application made under the new Act. In short, the authorities to which Mansfield J referred in Dieri People do not provide support for the principle established in Quall v Risk.
21 With respect to O'Loughlin J, I do not agree that where an applicant chooses to amend a native title determination application made under the old Act by changing the composition of the claimants, the application must thereafter comply with s 61 of the new Act. At least so far as any application under s 84C of the Act is concerned, the position is governed by item 21 of Schedule 5 to the Amending Act. Item 21 of Schedule 5 indicates that the question turns on when the main application was made. As Emmett J pointed out in [26]-[27] of Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ('Wharton'):
'Accordingly, when item 21 of Sch 5 provides that s 84C applies whether 'the main application' was made before or after the commencement of s 84C, it refers to an application filed in the Court that relates to native title. The second sentence of item 21 is unambiguous in providing that, if that application was made before the commencement of the Amendment Act, the references in s 84C to s 61 or s 62 are references to s 61 or s 62 of the Old Act.
An amendment to the main application does not give rise to a new application. The scheme of the Act recognises that applications may be amended. There is nothing to suggest that, when an application is amended, it should thereupon be treated as a new application so as to lose the protection afforded by item 21.'
In Branfield v Wharton the Full Court dismissed an application for leave to appeal from the judgment of Emmett J in Wharton.
22 Further, as O 13 of the Federal Court Rules ('the Rules') recognises, the Court has wide powers with respect to the amendment of documents in any proceeding. I see no reason to conclude that, subject to any contrary provisions of the NTA, those powers do not extend to ordering or allowing the amendment of a native title determination claim whenever made. Order 13 r 2(5) recognises that an amendment may have the effect of substituting another person as a party. Order 13 r 3A has the effect that, unless the Court otherwise orders, an amendment to a document that has the effect of substituting another party takes effect on the day when the document was first filed. That is, the Rules do not suggest that, when an application is amended in a way which touches on the identity of a party, the application is necessarily to be taken to have been made, even in respect of that party, on the day that the amendment is made. Of course, as the decision of Madgwick J in Eora People - Brown v NSW Minister for Land and Water Conservation recognises, the Court may qualify a grant of leave to amend to achieve that outcome should it consider it appropriate to do so.
23 In each of the Hartfield Park application and the Main application, Mr Bodney was granted leave to amend the application by filing a particular fresh document. The fresh document in each case was in a form prescribed for the purposes of the new Act. That is, the fresh document was not in the form required for a native title determination application under the old Act; it was in the form required for a native title determination application under the new Act. It may be arguable that it was an implicit condition of the leave to amend granted to Mr Bodney in each of the Hartfield Park application and the Main application that the application was to be taken to have been made on the date of the filing of the amended application. However, no argument to this effect was addressed to his Honour or to this Court. It would thus be inappropriate for this Court to reach a final view on the issue.
24 If the Hartfield Park application and the Main application are required to comply with the old Act, in my respectful view, the primary judge erred in striking them out. Each of the Hartfield Park application and the Main application makes it plain that the claim is advanced by Mr Bodney on behalf of a claim group that consists of the biological descendants of Melba Armitage and William Bodney (of their union). The Main application explicitly excludes one member of the described group. In my view the Hartfield Park application and the Main application describe or otherwise identify the others with whom Mr Bodney claims to hold native title sufficiently to satisfy the requirements of s 61 of the old Act.
25 If the Hartfield Park application and the Main application are required to comply with s 61 of the new Act, it is necessary to give consideration to subs 61(4) and s 251B of the new Act. Subsection 61(4) requires a native title determination application to name the members of the native title claim group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is a member of the group. On the assumptions that his Honour apparently made (see [29]-[30] below), that is (i) that a claim can be made by a small group in respect of rights and interests held by a larger group and (ii) that the Hartfield Park application and the Main application made such claims, the Hartfield Park application and the Main application describe the members of the claim group sufficiently clearly for it to be ascertained whether any particular person is a member of the group.
26 Section 251B of the Act governs the means by which persons in a native title claim group may, for the purposes of the Act, authorise a person to make a native title determination application. The section allows for two alternative methods of authorisation. The first method applies where there is a process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind. The second method applies where there is no such process. The second process is as follows:
'the persons in the native title claim group … authorise the other person … to make the application … in accordance with a process of decision‑making agreed to and adopted, by the persons in the native title claim group…, in relation to authorising the making of the application … or in relation to doing things of that kind.'
27 As is mentioned above, the primary judge concluded that Mr Bodney had failed to establish that he was authorised under either par (a) or par (b) of s 251B to make either the Hartfield Park application or the Main application. I do not think that his Honour overlooked that on a strike out application it was not for Mr Bodney to establish that he was authorised but rather for those who moved to have the applications struck out to establish a clear case of lack of authorisation. His Honour was clearly satisfied on the evidence before him that Mr Bodney was not authorised by either of the processes for which s 251B provides to make the applications. The reason that his Honour was so satisfied was that, as his Honour stated at [33]:
'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.'
28 I note incidentally that before us Mr Bodney denied knowingly giving evidence that there are people, other than his siblings and their children, whom he regards as Ballaruk and Didjarruk. Counsel for the respondent was unable to point to any aspect of the evidence given by Mr Bodney to which his Honour referred, that indicates that Mr Bodney regards anyone outside of his immediate family as Ballaruk and Didjarruk. There was, of course, evidence before his Honour, which his Honour accepted, concerning Mr Bodney's wider family. However, the native title claim group on whose behalf Mr Bodney purports to act does not include all members of Mr Bodney's wider family.
29 His Honour at [41] said:
'I do not think it necessary, in the context of these motions, to express a concluded view on the question whether it is possible for a person to make a native title determination claim on behalf of himself or herself alone, or a small group, in respect of rights and interests that are held by a wider group of people. One thing is certain; any claim must be authorised by the group on behalf of whom the claim is made.'
30 I understand his Honour by the above passage to say that, assuming as he was willing to do, that it was possible for a small group to make a native title claim in respect of rights and interests that are held by a wider group of people, it was certain that their claim must be authorised by the small group. It seems to me to be unlikely that his Honour intended to suggest that a small group could make a native title claim in respect of rights and interests that are held by a wider group of people but only if their claim is authorised by the wider group of people. His Honour had already expressed doubt about the validity of the view expressed by O'Loughlin J and Mansfield J respectively in Risk v National Native Title Tribunal [2000] FCA 1589 and Edward Landers v State of South Australia [2003] FCA 264 that the Act does not permit the making of a native title determination application by a subgroup of the native title claim group. His Honour's doubt was based upon the power that such a construction of the Act would give to dissidents within the wider group. Dissidents within a wider group would be equally powerful if their authorisation were required by any subgroup that wished to make a native title determination application. Wilcox J was satisfied that Mr Bodney had failed to establish authorisation under either par (a) or par (b) of s 251B of the Act in respect of either the Hartfield Park application or the Main application. I therefore conclude that his Honour must have been satisfied that Mr Bodney had failed to establish authorisation by the small group on behalf of whom his claims were made.
31 It is possible that the small group on whose behalf Mr Bodney has made his claims is also the whole of the group that is alleged by him to hold the claimed native title rights and interests. The rights and interests to which the Act accords recognition include the rules of traditional law and custom that deal with the transmission of those rights and interests (Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 per Gleeson CJ, Gummow and Hayne JJ at [44]). Absent evidence as to the rules dealing with transmission, it cannot be assumed that any rights and interests now recognised must necessarily be held by all of the living descendants of those who held the rights and interests at sovereignty. That is, it is at least theoretically possible that individuals who are Ballaruk and Didjarruk by descent do not share in all of the native title rights and interests of the Ballaruk and Didjarruk community, perhaps because they have ceased to acknowledge the traditional laws and observe the traditional customs of the Ballaruk and Didjarruk community. However, the issue of whether the small group on whose behalf Mr Bodney has made the claims is also the whole of the group that is alleged by him to hold the claimed native title rights and interests need not be determined on this appeal.
32 By his notice of appeal, Mr Bodney complains that he should have been given an opportunity, perhaps with professional help, to make any changes necessary to validate his applications. The respondents acknowledge that there is no legal impediment in the way of Mr Bodney making fresh applications with proper authority. They contend that, rather than being allowed to remedy any defects in his applications, Mr Bodney should be required to make fresh applications. However, as the relevant substantive native title determination proceedings are part‑heard, it is highly undesirable that Mr Bodney should now be required to make fresh applications in respect of the same native title claims. Even if that factor is put to one side, multiplicity of proceedings should generally be avoided (see O 13 r 2(2) of the Rules). Any defect or error capable of being corrected by amendment should ordinarily be allowed to be corrected by amendment.
33 I have, with considerable reluctance, formed the view that the primary judge allowed his views as to the merits of the respective applications made by Mr Bodney to influence his judgment on the strike‑out motions. Section 84C is concerned with matters of form and authority, not with the merit of any native title determination application. His Honour concluded at [46] that Mr Bodney's position could not be cured by further evidence. However, his Honour does not appear to have given consideration to whether Mr Bodney should have been allowed an opportunity to gain, from those on whose behalf he purported to make the Hartfield Park application and the Main application, the necessary authorisations to make the applications. As that native title group is confined to his immediate family he may well be able to gain the necessary authorisations within a relatively short timeframe. Order 13 r 2(6) recognises that a document may be amended to alter the capacity in which a party sues. It is not necessary to decide whether the authorisation requirements of s 61(1) technically affect capacity to sue; they are requirements of an analogous kind. It is no longer the law that a claim for relief cannot be founded on facts or matters that have arisen since the commencement of the proceeding (see O 13 r 2(7) and (8) of the Rules).
34 We did not hear argument on this appeal on the question of whether the Act in its present form, or in its earlier form, permits the making of native title determination applications by a subgroup of those who are alleged to hold the relevant native title rights and interests. It would therefore be inappropriate, in my view, for this Court to express a concluded view on this question.
35 I would grant Mr Bodney leave to appeal, allow the appeal, set aside his Honour's orders and remit the motions to the primary judge. If the motions continue to be pressed, his Honour will, I consider, be required to determine whether the Hartfield Park application and the Main application are required to comply with the old Act or the new Act. His Honour may also have to determine whether Mr Bodney should be given the opportunity to amend his applications, or any of them. It will be for his Honour to determine whether it is necessary for him to give consideration to whether the Act in its present form, or in its earlier form, permits the making of native title determination applications by a subgroup of those who are alleged to hold the relevant native title rights and interests.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.