Booth on behalf of the Kungardutyi Punthamara People v State of Queensland

The abuse of process issue 45 The relevant facts are these. 46 Clancy Booth, the father of Geoffrey Booth, filed a native title determination application on behalf of the "Bunthamara" People on 14 April 1998 (QUD6187/1998). The application was discontinued on 14 December 1999. 47 Geoffrey Booth filed a native title determination application on behalf of the "Bunthamarra" People on 8 April 2002 (QUD6014/2002). This claim was dismissed under s 84C(1) of the NTA on 9 May 2003 (Booth v State of Queensland [2003] FCA 418). 48 In 2006 Mark Wallace and Barbara Olson, as applicants, filed a native title determination application on behalf of the Boonthamurra People. Geoffrey Booth and Dennis Fisher as representatives of the Booth/Fisher families were joined as a respondent to this proceeding. Separate questions were answered by Mansfield J in Wallace on behalf of Boonthamurra People v State of Queensland [2014] FCA 901; (2014) 313 ALR 138. The questions determined included these (at [6]): (1) Were the deceased persons known as Clara and her son Frank Booth Boonthamurra persons? (2) Did the geographical area with which Clara and her son Frank Booth were traditionally associated extend into the claim area of this claim, and if so to what extent? (3) If so, is it reasonably arguable that Clara and her son Frank Booth acquired native title rights and interests in any part of the Boonthamurra claim area on the basis of that descent, other than as members of the claim group? (4) Were the deceased persons known as Toby and/or Jenny, and their daughter, Toney: (a) Boonthamurra persons; or (b) Kungadutji persons? (5) Did the geographical area with which Toby and/or Jenny, and their daughter Toney were traditionally associated extend into the claim area of this claim and if so to what extent? (6) If so, is it reasonably arguable that persons who are descended from Toney acquired native title rights and interests in any part of the Boonthamurra claim area on the basis of that descent, other than as members of the claim group? 49 The "Clara" referred to in these questions is the "Clara" in the Kungardutyi Punthamara application (the daughter of Alex and Maggie). Mansfield J at [51] said: Clara married Jim Booth, a white man. She is the mother of Frank Booth. Toney married Frank Booth. Frank Booth Jnr and Toney are in turn the parents of Dolly Fisher, Clancy Booth and Dempsey Booth. It is the next generation: Dennis Fisher (son of Dolly Fisher) and Geoffrey Booth (son of Clancy Booth) and others who have given evidence in this matter. 50 Members of the Kungardutyi Punthamara native title claim group, in their affidavits, identify their descent from Frank and Tonie Booth. The Geoffrey Booth who gave evidence before Mansfield J in Wallace is the Geoffrey Booth who is an applicant for the Kungardutyi Punthamara application. 51 Mansfield J noted the following in Wallace: [45] As the issues have emerged, the claim is not simply about whether the Booth/Fisher families are properly Boonthamurra People by their apical ancestors but about the location of Boonthamurra country. When the order for the determination of particular questions was made, it was anticipated that if the deceased person, Clara and her son Frank Booth were found to be Boonthamurra People, or alternatively if Frank Booth's wife Toney was Boonthamurra, that would be followed by an order that they should be added to the apical ancestors of the Boonthamurra People, and so the Booth/Fisher families would be recognised as members of the Boonthamurra People. [46] In the course of submissions, the issue did not emerge in that way. Counsel for the Booth/Fisher families indicated that the Booth/Fisher families described themselves as part of the Wilson River group, involved largely through Clara in only the southern section of the Boonthamurra claim area, but they also claimed native title rights and interests over parts of the Wongkumara People claim area and the Kullilli People claim area. In addition, in respect of the alternative apical ancestor known as Tobey and/or Jenny, or her daughter Toney (but on the evidence more directly through Toney), the proposition was put in argument that the Kungadutji community had become synonymous with and part of the Boonthamurra People, but the two families' particular interests through Toney were in the western section only of the Boonthamurra claim area towards Cooper Creek area, and probably west of the Cooke Range. [47] In either event, it became apparent that the answer to the questions as expressed, if affirmative, would not routinely lead to the apical ancestors for the Boonthamurra People being changed in respect of this particular claim area. It might lead to a fresh claim made by the "Wilson River group "in respect of an area which overlaps each of the Boonthamurra, Kullilli and Wongkumara Peoples claim areas. [48] In that regard, it is worth noting that, as I observed when that potential position emerged, the general south-west area of Queensland has been the subject of extensive claims made over a long period of time. All of those claims (other than the ones presently on foot) have either been dismissed or discontinued. If there is to be another claim, it should have been brought earlier and in a timely manner. [49] However, it is not necessary to consider the consequences of such a potential claim, except to the extent that it affects the answers to the questions referred and consequently the status of the Booth/Fisher families as respondent parties to this application. 52 In a document filed in the Wallace proceedings on 21 October 2008 Geoffrey Booth and Dennis Fisher contended that the "Bunthamarra" and "Kungardutyi" Peoples "have different traditional country". Subsequently, Geoffrey Booth gave evidence in an affidavit that Kungardutyi land was to the north-west of Boonthamurra land. 53 In [53] Mansfield J said: What is important is whether Clara was a Boonthamurra woman or had an interest of a relevant kind in the present claim area, or (as the evidence has focused) in the southern part of the present claim area. 54 His Honour recorded Geoffrey Booth's evidence in these terms at [65]: As noted, Geoffrey Booth is Clancy Booth's son. In Geoffrey Booth's affidavit of 7 November 2008, he said he was told by his father that Grandpa Frank (Frank Booth) was from Noccundra and Nockatunga, and that around "that way" was Grandpa Frank's country. He said Grandpa Frank was a Boonthamurra man. He also said Clancy Booth was from Nockatunga and that his tribe was the Boonthamurra/Wilson River tribe. In his affidavit of 12 November 2012, he said that Nockatunga was the main feature and central to his country. He said Clancy Booth's mother, his grandmother, came from "around Eromanga and that this was her country and that she was a Kungadutji woman. At the hearing, Geoffrey Booth gave evidence of his understanding of law and custom, as taught to him by his father that the child's mother chooses their tribe, and that his mother elected to choose Boonthamurra. He said Clara chose Boonthamurra for her son Frank and that Toney, Frank Booth's wife, also chose Boonthamurra for Clancy Booth. Geoffrey Booth said his father identified as Boonthamurra and there was a conscious decision made not to identify as Kungadutji in order to keep the family together. He also said his father told him a lot about Kungadutji laws and customs. 55 It is apparent from Mansfield J's reasons at [67] and [73] that Punthamara is the same as Boonthamurra. 56 His Honour's conclusions about Clara included the following (my emphasis): • [86] In my view, the evidence indicates that Clara was a Yandruwandha/Yawarrawarrka person. I prefer the views of Professor Trigger, Dr Sneddon and Mr Southon on that topic. I think that the critical step taken by Dr Powell referred to above is not warranted on the whole of the evidence, and that another step in her reasoning - namely that Kungadutji is a tribal ascription rather than a general description of status - is also not warranted on the evidence. The reasons for not accepting those steps in her reasoning are set out above. • [87] Once those steps are not taken, there is only the anecdotal oral evidence which tends to identify Clara, or more directly Clancy Booth and Frank Booth through Clara, as Boonthamurra. I have discussed that evidence above. They are the particular reasons why, in this particular matter, that evidence is not persuasive. • [98] Consequently, I find, on the balance of probabilities, that there is no sound basis that Clara had a Boonthamurra identity. It follows that Frank Booth and his lineal descendants including Clancy Booth and then the Booth/Fisher families are not Boonthamurra persons through Clara. 57 His Honour's conclusions about Toney (or Tonie), who married Frank Booth, included these: • [84] I think the strong preponderance of the evidence is that the Kungadutji People, as a language group holding interests in country, hold their interest quite remotely from the present claim area. Tindale's journal records an interview with George Dutton describing the Kungadutji group as occupying the "upper Buloo River" area. Dr Breen's interviews with George McDermott and King Miller in the 1960s record it as the area of Naryilco to Tibooburra. Dr Hercus and others in their study of Aboriginal Cultural Association with Mutawintji National Park entitled "Mutawintji", prepared for the Registrar, Aboriginal Land Rights Act 1983 (NSW), say much the same thing. Their report at para 4.4 says: All the evidence places Kungardutji in the area immediately east and north-east of Tibooburra and around the southern parts of the swampy areas around Lake Bulloo. They refer to other earlier sources to support that. That area is, of course, in the north-western part of New South Wales. • [100] Toney is the daughter of two Aboriginal persons, Toby and Jenny. Nothing is known of their tribal origins or affiliations. The evidence focused on the status of Toney. Toney married Frank Booth at Eromanga in 1916. The alternative basis of the Booth/Fisher families' claim to be Boonthamurra is through Toney. • [105] It is, on the evidence, clear Toney was identified as being of the Kungadutji tribe at the time of Tindale's expedition. The issue is whether the Kungadutji area is part of the Boonthamurra country. Dr Powell agreed that her view was based on limited knowledge. She identified "various old records" which identified Kungadutji to be associated with areas that overlap with the western part of the Boonthamurra claim area. Her notion of Kungadutji being an identity label that was subsequently superseded by Boonthamurra and Wongkumara, largely relies on linguistic analysis. • [106] In my view, on the evidence, the views of Professor Trigger, Dr Sneddon and Mr Southon, based partly on Dr Hercus' analysis, that Kungadutji was more likely to be further south than the Boonthamurra claim area are more probably correct. I have discussed above the reason why I conclude that the Kungadutji People as a language group is an area well remote from the present claim area. • [107] For those reasons, I do not think that the identification of Toney as Kungadutji by Tindale advances the claim of the Booth/Fisher families to be Boonthamurra. There is, in addition, no evidence to support the proposition that there is any acquisition of rights to country acquired by birth place irrespective of lineal acquisition of rights (either patrilineal or matrilineal), and there is no evidence which can support any finding that by her parentage Toney acquired rights in the Boonthamurra claim area. 58 Mansfield J answered the separate questions raised at [6] as follows at [110] and ordered that Geoffrey Booth and Dennis Fisher cease to be parties to the Boonthamurra application: (1) No. (2) On the basis that the expression "traditionally associated" conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim: No. (3) Not necessary to answer. (4) (a) No. (b) Not necessary to answer (see answer to question (5). (5) On the basis that the expression "traditionally associated" conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim: No. (6) Not necessary to answer. 59 Subsequently, Mansfield J made orders by consent determining native title rights and interests in favour of the Boonthamurra People (Wallace on behalf of Boonthamurra People v Queensland [2015] FCA 600 or Wallace No 2). The native title claim group was described as the descendants of Kangaroo or Dick Ray. 60 Mansfield J also made orders by consent determining native title rights and interests in favour of the Yandruwandha and Yawarrawarrka People in Nicholls v State of South Australia [2015] FCA 1407. The native title claim group was described as including the descendants of "Clara Nirrpinni, mother of Frank Booth and Alice Miller (nee Booth)" which is the same Clara referred to in Wallace as an ancestor of the Booth family and as a Yandruwandha/Yawarrawarrka person and as an ancestor in the Kungardutyi Punthamara application. 61 Geoffrey Booth and Dennis Fisher had also each notified the Court in writing of their interest in the Wongkumara application and thus became parties to the Wongkumara application pursuant to s 84(3) of the NTA. On 3 February 2016 the Wongkumara applicants filed an interlocutory application seeking the removal of Geoffrey Booth and Dennis Fisher as parties to the Wongkumara application. Geoffrey Booth and Dennis Fisher discontinued their claims on 3 March 2016 in respect of the Wongkumara application immediately before the scheduled hearing date for the interlocutory application for them to be removed as parties. 62 As noted, the Kungardutyi Punthamara application, which overlaps the entirety of the claim area of the Wongkumara application, was filed on 4 November 2016, with Geoffrey Booth, Coral King, Stewart Williams and Veronica Booth as the applicants. Geoffrey Booth's supporting affidavit claims descent from Clara and Tonie Booth, the subject of the separate questions in Wallace and the first of whom is an apical ancestor for the Yandruwandha and Yawarrawarrka native tile determination. Coral King claims descent from Tonie and Frank Booth, Frank being the son of Clara and husband of Tonie. Veronica Booth claims descent from Clara. Stewart Williams claims descent from Nancy (his grandmother) and Clancy Booth (his grandfather). Clancy Booth is the son of Tonie. Nancy is described as a relative of Frank Booth but by connections unknown. Otherwise all that is known is that she was the mother of Rosie Williams and associated with Nockatunga Station. 63 The principles relevant to a question of abuse of process were considered in Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5; (2017) 341 ALR 415. They include that: (1) Abuse of process is inherently broader and more flexible than estoppel. The doctrine may apply in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute (Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750 at [25]). (2) "…making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel" (Tomlinson at [26]). (3) "…there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute" (O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 at [102] citing Rogers v R [1994] HCA 42; (1992) 181 CLR 251). (4) Relevant factors for assessing the existence of an abuse of process include "the importance of the issue in and to the earlier proceedings; the terms and finality of the finding as to the issue sought to be relitigated; the identity between the relevant issues in the two proceedings; the extent of the oppression and unfairness to the other party if the issue is relitigated; the impact of the re-litigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties" (O'Shane at [106] citing State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 (64,077)). (5) "Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant. The 'broad merits-based judgment' excluded any narrow or artificial approach" (Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 at [114]). 64 I do not accept that in Wallace Mansfield J did not determine the status of apical ancestors outside of the Boonthamurra claim area. To the contrary, in Wallace Geoffrey Booth contended that Clara was Boonthamurra, a claim which Mansfield J rejected because he found that Clara was a Yandruwandha/Yawarrawarrka person. This was an essential fact underpinning his Honour's decision that Clara was not Boonthamurra and thus her descendants could not have traditional rights and interests in the Boonthamurra claim area. This is consistent, moreover, with the orders in Nicholls in which "Clara Nirrpinni, mother of Frank Booth and Alice Miller (nee Booth)" is an apical ancestor for the Yandruwandha/Yawarrawarrka People. 65 As QSNTS submitted the Kungardutyi Punthamara application seeks to re-litigate the issue whether Clara is a Boonthamurra person by re-branding the relevant society as Kungardutyi Punthamara. This constitutes an abuse of process. It is vexatious and oppressive to QSNTS (a party to Wallace) and to the Wongkumara applicants. It would bring the administration of justice into disrepute because the identity of Clara as a Yandruwandha/Yawarrawarrka person was essential to the orders in Wallace removing Geoffrey Booth as a party and to the native title determination in Nicholls. 66 Further, the Kungardutyi Punthamara application is inconsistent with the case which was put by Geoffrey Booth in Wallace in a number of respects. In Wallace, according to Geoffrey Booth's initial evidence, the lands of the Kungardutyi were separate from those of the Boonthamurra. Kungardutyi land, it was said, was to the north-west of Boonthamurra land whereas Wongkumara land was to the south of Boonthamurra land. Geoffrey Booth ultimately contended that Tonie was Kungardutyi but on the basis that Kungardutyi was a part of the Boonthamurra and Wongkumara identity so as to found rights and interests, via Tonie, in the Boonthamurra claim area. As noted, Mansfield J rejected this contention on the basis that Tonie was Kungardutyi but Kungardutyi country was far to the south of Boonthamurra country in north-western New South Wales. This finding also underpinned his Honour's conclusion that Geoffrey Booth was not a proper party to the Boonthamurra proceeding because descent from Tonie, a Kungardutyi person, could not found traditional rights and interests in the Boonthamurra claim area. 67 Accordingly, to remove Geoffrey Booth and Dennis Fisher as respondents to the Boonthamurra proceeding, Mansfield J had to be satisfied that neither descent from Clara nor Tonie gave Geoffrey Booth rights and interests in the Boonthamurra claim area. To reach the conclusion that Geoffrey Booth had no such rights and interests and thus was not a proper party to the Boonthamurra proceeding it was necessary for Mansfield J to find, as he did, that Clara was Yandruwandha/Yawarrawarrka whose country was to the west of Boonthamurra country and Tonie was Kungardutyi whose country was remote from Boonthamurra country, being in north-western New South Wales. But for these findings, including that the location of Yandruwandha/Yawarrawarrka and Kungardutyi country was nowhere near Boonthamurra country, there would have been no factual foundation for his Honour to have ordered removal of Geoffrey Booth and Dennis Fisher as parties from the Boonthamurra proceeding. These findings are inconsistent with Clara or Tonie being the source of any traditional rights and interests in the Wongkumara claim area to the immediate south of and abutting the Boonthamurra claim area. 68 Despite this, in the Kungardutyi Punthamara application there is a single claim area which is to the immediate south-west of Boonthamurra country, overlapping the Wongkumara claim area, with traditional rights and interests said to be sourced from descent from Clara and Tonie. 69 As QSNTS put it, Geoffrey Booth as a representative of the Booth family conducted the Wallace litigation on one basis and, having failed, now seeks to conduct litigation for the Kungardutyi Punthamara People on an inconsistent basis. The combining of the formerly separate alleged identities of Kungardutyi and Boonthamurra creates a new society, never identified in Wallace, said to have rights and interests in relation to a new area of land, the effect of which is to eradicate the land to the immediate south of the Boonthamurra land which was recognised by Geoffrey Booth as Wongkumara country. This too is an abuse of process as it is oppressive of QSNTS and the Wongkumara applicants. In Wallace at [48] Mansfield J said that: …the general south-west area of Queensland has been the subject of extensive claims made over a long period of time. All of those claims (other than the ones presently on foot) have either been dismissed or discontinued. If there is to be another claim, it should have been brought earlier and in a timely manner. 70 Yet having failed in Wallace, Clara having been determined to be not Boonthamurra but Yandruwandha/Yawarrawarrka and an apical ancestor of the Yandruwandha/Yawarrawarrka native title claim group whose land is to the west, and Tonie having been determined not to be Boonthamurra but Kungardutyi whose land was to the south of and remote from the Boonthamurra land (that is, land in the north-western part of New South Wales), the Kungardutyi Punthamara applicants made a claim in November 2016 over the same claim area as the Wongkumara applicants (the Wongkumara applicants claim having been on foot since 2008), being land immediately to the south of the Boonthamurra land. This also involves both oppression to QSNTS and the Wongkumara applicants and, if permitted, would bring the administration of justice into disrepute. 71 Moreover, Geoffrey Booth was a party to the Wongkumara application and asserted interests in the Wongkumara claim area since 2008. When the Wongkumara applicants filed an interlocutory application in February 2016 seeking to challenge the existence of those interests in the Wongkumara claim area Geoffrey Booth withdrew as a party from the Wongkumara proceeding. Subsequently, the Kungardutyi Punthamara application was filed claiming rights and interests in the same area. As the Wongkumara applicants submitted, if it is the contention of the Booth family (and the Williams family) that apical ancestors have been omitted from the Wongkumara application then the proper way for that question to have been determined was as an issue in the Wongkumara proceeding. The making of an overlapping claim on behalf of a sub-set of a society, some eight years after the Wongkumara application was filed, is not a permissible way to resolve this issue. Geoffrey Booth had this opportunity to resolve his interests in the Wongkumara claim area in 2016 but declined to take that opportunity by withdrawing as a party from the Wongkumara proceeding before the Wongkumara applicants' interlocutory application to determine this issue was heard. For Geoffrey Booth now to be an applicant in the Kungardutyi Punthamara application involves oppression of QSNTS and the Wongkumara applicants which also would bring the administration of justice into disrepute. 72 Some further observations should be made. 73 One observation is that this case does not raise for any consideration the concept that an Aboriginal person may identify, at different times, with more than one traditional society. Geoffrey Booth's assertion of Boonthamurra identity was based on his descent from Clara and Tonie Booth. Mansfield J's conclusion that neither gave Geoffrey Booth Boonthamurra identity was based on his finding that Clara was Yandruwandha/Yawarrawarrka and Tonie was Kungardutyi, with Kungardutyi country being remote from and to the south of Boonthamurra country. It was not suggested in Wallace, and is not suggested now, that Clara was Yandruwandha/Yawarrawarrka and also Kungardutyi Punthamara by reason of another source of such identification. It is also not suggested that Tonie's descent and affiliations are different from those considered in Wallace. 74 Another observation is that exercising a broad merits-based judgment it is apparent that the actions taken by Geoffrey Booth in the past have been by him as a representative of the Booth family generally. Of the four descent lines comprising the Kungardutyi Punthamara native title claim group, two (Clara and Tonie Booth) are associated directly with the Booth family. The other two, Rosie Williams and Durham Bob, are separate. However, the Kungardutyi Punthamara native title claim group cannot itself be subdivided (yet further). If, as I am satisfied it is, it is an abuse of process for Geoffrey Booth (and thus the Booth family) to bring the Kungardutyi Punthamara application, then it necessarily follows that the application as a whole involves an abuse of process. 75 A further observation is that it is no answer to the abuse of process to note, as is the fact, that a person may lead different evidence in a subsequent proceeding from an earlier proceeding. The issue of abuse of process requires consideration of all of the circumstances to determine whether there is oppression and the bringing into disrepute of the administration of justice. This is not a case of mere different evidence. It is a case of a party, representing the interests of his family, having made a claim supported by evidence in a first proceeding (Wallace) and failing in that claim, having made another claim in a second proceeding (the Wongkumara proceeding) and withdrawing that claim before it could be determined, now making a claim in a third proceeding on the basis of contentions and evidence not only fundamentally inconsistent with the contentions and evidence relied upon in the first proceeding, but also as an illegitimate alternative to having the withdrawn claim in the second proceeding being determined in that proceeding. The extent of the oppression involved to QSNTS and the Wongkumara applicants is profound. The inconsistency of the conduct with the principle of the finality of judgments is also manifest. 76 The Kungardutyi Punthamara application should be summarily dismissed as an abuse of process for these reasons.

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Judgment (11 paragraphs)

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Cases Cited (52)