Budby on behalf of the Barada Barna People v State of Queensland

Earlier progress in relation to the native title application 16 At the directions hearing of 13 September 2012 where I ordered the applicant to show cause, I indicated to the applicant that, in my view, little progress had been made since the previous directions hearing on 26 July 2012 or the directions hearing prior to that on 18 November 2011, or indeed since the earlier directions hearings in 2010. So, for example, I note that: On 3 December 2010 I ordered, inter alia, that by 23 February 2011 the applicant file and serve an affidavit deposing to how the current claim group was identified, the composition of the earlier Barada Barna, Kabalbara and Yetimarala claim groups, the reasons for any differences in the composition of those claim groups and including a genealogy of Maggie Barker and an explanation as to why Maggie Barker was identified as an apical ancestor in the Barada Barna clan. This followed a directions hearing where the solicitor for the applicant informed the Court from the bar table that no comprehensive, thorough, anthropological work had been done in relation to the BBKY claims prior to anthropological research undertaken by Ms McFadden and Dr Gorecki, and that this research supporting the current claim was "a start on the work that needs to be done" (transcript 3 December 2010 p 5 ll 24-26 and p 6 ll 9-10). These orders were not complied with. On 24 June 2011 I ordered the applicant to file further material in relation to the composition of the claim groups and the genealogy of Maggie Barker by 11 July 2011. This was in circumstances where the correct tribal affiliation of Maggie Barker was clearly in dispute. The parties attended a directions hearing before Deputy Registrar Fewings on 15 July 2011, where the Deputy Registrar made timetabling orders relating to the provision of a second report by Dr Sackett. By 11 October 2011 Dr Sackett's second report had not been delivered and it had become clear that the timetabling orders of the Deputy Registrar would not be complied with. On that date I ordered that the applicant file and serve a report with a fresh timetable, detailing the completion of Dr Sackett's second report concerning Maggie Barker. I also expressed concerns relating to the prosecution of the application and the length of time the matter had been before the Court (transcript 11 October 2011 p 4 ll 8-10, p 11 ll 1-6) notwithstanding that the claim had taken marginally different forms previously (transcript 11 October 2011 p 4 l 12). On 18 November 2011 I ordered that a number of indigenous respondents cease to be respondent parties to the native title application. In a progress report filed on 30 May 2012 the applicant advised the Court that the "proper native title claim group for the area" in fact comprised a wider group broadly described as the Barada Barna People, the Yetimarala People and the Kabalbara People. At the directions hearing on 26 July 2012 Mr Gore for the applicant informed the Court that Dr Sackett had concluded that the correct claim group was the Barada Barna, Kabalbara and Yetimarala People, and (in my view, significantly) "so it's like a return to the past" (transcript 26 July 2012 p 45 l 16). Mr Gore further submitted: ... The applicant contends that the Barada Barna are [sic] the correct native title claim group. Having said that, in view of the very cooperative process which has been undertaken by Queensland South, where we have been working closely with them, the applicant has indicated that in principle, it recognises the report that Dr Sackett has largely prepared and if we can reach an accommodation with the other groups in the BBKY group of native title peoples, then the applicant will also go along with Dr Sackett's opinion. As to whether - as what [sic] the correct native title claim group is, your Honour is aware that can be a contentious issue and - but the one thing is true [sic] and isn't in dispute with Queensland South or the other groups is that Barada Barna is a valid native title grouping in itself, but whether it's the right letter of - of a native title peoples for a valid claim under the Native title Act or whether it's the larger group is a matter that could be of some contention. (Transcript 26 July 2012 p 45 ll 24-37) Mr Gore then informed the Court of the proposed meetings scheduled for the following months in Mackay and Rockhampton, and involving QSNTS (acting for the Kabalbara and Yetimarala People), and of the prospect of further anthropological research and an authorisation meeting to authorise a new combined claim in December 2011. Somewhat presciently, at the hearing on 26 July 2012 Mr Boge for various pastoral respondents submitted: MR BOGE: True. But once again, the court and the parties are confronted with a potentially defective claim sitting on the record and statements are made from the bar table, reports are filed, in which it is stated that the one anthropologist that is looking at this, and he is providing a report as an expert, questions the claim group description in the one extant claim there is and everybody is asked to just wait and see if some meetings happen and people sort things out… …So I have no confidence that whatever claim spits out the other end is going to have agreement from other groups, plus there is [sic] Mr Saylor's people who are already contesting this claim about the identity of applicable ancestors so we are - we are going backwards, in some respects. I accept the need for this work to be done but it's not clear to me what happens if it doesn't get done and, indeed, there's no compulsion on anybody to do anything. The applicants can just ignore Dr Sackett's report, if they chose [sic] to. (Transcript 26 July 2012 p 48 ll 6-28) In light of the submissions to the Court I made the following orders: 1. By 4.00 pm on 14 August 2012 the Applicant file and serve an affidavit deposing as to meetings relevant to the commencement of any Barada Barna, Kabalbara and Yetimarala claim and when such claim is going to be filed. 2. The matter be listed for further directions on 13 September 2012 at 9.30am. 3. Any material to be relied upon by any party in relation to any orders it is proposed be made by the Court on 13 September 2012, be filed and served on all other parties by 4.00pm on 10 September 2012. 17 On 13 September 2012 the applicant submitted that, although it had sought a further opinion from Mr Jefferies and Professor Rigsby concerning the proper boundaries of the claim, the members of the applicant were nonetheless prepared to engage in further discussions with other claim groups. The applicant sought orders allowing further meetings to take place and the new claim to be progressed, in conjunction with the matter remaining in case management. The Wiri respondents however submitted, in summary, that: The native title application claim group was imperfect and improperly composed, with the result that it did not satisfy s 61 of the Native Title Act. Because the native title claim was fundamentally flawed, the respective claim groups had discussed a new claim, rather than an amended claim. Their interest was triggered by the geographical boundaries identified in the Barada Barna claim, and the inclusion of Maggie Barker as an apical ancestor in the Barada Barna claim (in circumstances where the Wiri respondents also claim title rights and interests deriving from Maggie Barker). 18 I note that in the time between the most recent directions hearing and the hearing of the show cause motion the applicant reconsidered its position. The applicant is now fully committed to progressing its current claim (as opposed to becoming part of a larger regional claim involving the Kabalbara and Yetimarala People), as well as engaging additional expert anthropologists to undertake further research.

Dismissal and show cause - relevant principles 19 It is clear that the exercise of powers to summarily terminate proceedings must always be attended with caution: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]. Rules permitting summary dismissal of proceedings are intended for cases that are not fit for trial at all (Spencer at [21], Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 260). 20 The power of the Court to dismiss this proceeding derives from a number of provisions of the Federal Court of Australia Act 1976 (Cth) ("Federal Court of Australia Act") and the Federal Court Rules 2011 (Cth) ("Federal Court Rules"). In particular: Rule 1.32 of the Federal Court Rules provides: 1.32 Court may make any order it considers appropriate in the interests of justice The Court may make any order that the Court considers appropriate in the interests of justice. Rule 1.40 of the Federal Court Rules provides: 1.40 Exercise of Court's power The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; … Rule 26.01(1) of the Federal Court Rules provides (materially): 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious; or (c) no reasonable cause of action is disclosed; or (d) the proceeding is an abuse of the process of the Court; or (e) … Section 37M of the Federal Court of Australia Act provides: 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. Further, s 37N(1) of the Federal Court of Australia Act provides: 37N Parties to act consistently with the overarching purpose: (1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose. 21 Cases in which a judge of this Court has dismissed a native title application following an order that the applicant show cause why the application should not be dismissed are relatively few in number. As observed by Logan J in Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2011] FCA 472 at [10]-[11], orders for dismissal have been made in proceedings where default in compliance with Court orders has been accompanied by an apparent want of any prospect on the material filed of the application ever enjoying success. This approach is consistent with the general caution with which Courts approach applications for summary dismissal: Spencer at [24], Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99, Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46].

Position of the applicant 22 In this case the applicant submits, in summary, that: No contention has been put to the applicant in this proceeding that the native title application fails to comply with any of ss 61, 61A or 62 of the Native Title Act, such that s 84C of the Native Title Act would confer power on the Court to strike out the native title application. In any event, the Court should approach applications for summary judgment under r 26.01, and s 84C of the Native Title Act, with caution. A strike-out order should only be made where the claim is clearly untenable on the basis of the material advanced on behalf of the applicant whose claim is sought to be struck out (Laing v State of South Australia (No 2) [2012] FCA 980 at [20]). The native title application is not "clearly untenable" and ought not be summarily dismissed, because: the present claim is properly formulated and properly authorised; there is clear anthropological research (prepared by Ms McFadden and Dr Gorecki) supporting connection between the Barada Barna People and the area the subject of the claim; it is the applicant's case that only the Barada Barna People hold native title rights and interests in the area the subject of this claim. The applicant's willingness to engage with QSNTS in relation to the proposal concerning the Kabalbara and Yetimarala People was not inconsistent with this position; the applicant ought not be deprived of the opportunity to properly prosecute the Barada Barna People's claim, simply because there exists a difference of opinion between anthropologists as to various matters such as the northern boundary of the claim or the inclusion of particular apical ancestors; it is not unusual in the native title context for there to be disputes between competing claim groups. Any person who disputes the claim of the Barada Barna People may apply to be joined as a respondent to the native title application, or alternatively make a competing claim. The presence of practical and legal difficulties associated with competing claims is not of itself a basis on which to strike out a claim; there is no suggestion that the Barada Barna People are merely a sub-group of the group of people who properly hold rights and interests in the area the subject of this claim, and no evidence to support such a proposition; the process of gathering all necessary evidence for the purposes of successfully prosecuting this claim to a determination is not yet completed; the fact that the claim is a registered claim implies that it is a credible claim; the applicant does have reasonable prospects of successfully prosecuting its claim, and ought to be permitted to do so, albeit under the close supervision of the Court. The applicant proposes orders to take the matter forward, under case management.

Consideration 23 An order that the native title application be dismissed is sought by both the Wiri respondents and the State of Queensland. 24 In my view the native title application should be dismissed. I have formed this view for the following reasons.

Reasonable prospects 25 First I do not accept the submission of the applicant that it has reasonable prospects of successfully prosecuting its claim within the meaning of r 26.01(1)(a) of the Federal Court Rules. In particular it now appears from the draft orders placed by the applicant before the Court that the applicant seeks the indulgence of the Court to continue a search for a supportable basis for its claim - a basis apparently currently lacking. Notwithstanding that the claim was registered on 9 October 2009, the applicant has repeatedly briefed expert anthropologists in what may be an ultimately fruitless endeavour to identify fundamental anthropological information upon which the native title application can progress, namely the composition of the native title claim group and the proper boundaries of the native title application. It is clear that the reports of Ms McFadden and Dr Gorecki, and Mr Jefferies and Professor Rigsby, do not adequately support the applicant's native title claim because the applicant seeks new anthropological research. Dr Sackett's reports clearly do not support the claim. It is, in my view, dubious whether the applicant would achieve any more success from the further anthropological report they seek to procure from the UQ Culture & Heritage Unit. 26 Further, as submitted - in my view accurately - by the State of Queensland in this proceeding, the applicant's case is "a moving feast". On 30 May 2012 and 26 July 2012 the applicant informed the Court that it recognised the conclusions reached by Dr Sackett concerning the wider formulation of the claim group and that, if it could reach an accommodation with other native title groups, it would "also go along with Dr Sackett's opinion" (transcript 26 July 2012 p 45 l 30). However the applicant has now informed the Court that it has reconsidered its position and is now fully committed to progressing its current claim rather than becoming part of a larger regional claim. A reasonable inference which can be drawn from this vacillation on the part of the applicant is the existence of serious flaws in the native title application which remain unresolved. 27 In the circumstances I am not satisfied that the continued reformulation of the application is at an end, now or in the foreseeable future. The case advanced by the applicant is that its view of the form of the claim is potentially subject to any view anthropologists from the UQ Culture & Heritage Unit may form in relation to a new Barada Barna Kabalbara and Yetimarala claim and the southern extent of "Wiri country" (assuming, of course, that the applicant accepts this view and does not seek to commission future further anthropological research). The apparent inability of the applicant to adduce evidence to support the native title application in its current form - despite repeated attempts over a number of years - is, in my view, a proper basis for the Court to conclude that the applicant lacks reasonable prospects of successfully prosecuting its claim. 28 Finally, I am not persuaded by the submission of the applicant equating registration of a native title claim with credibility such that the relevant native title application ought not be dismissed. Different considerations apply to registration of a native title claim compared with those relevant to a motion for dismissal of a native title application. Although the entry of a claim on the Register is a significant step, conferring the right to negotiate pursuant to Subdiv P of Div 3 of Pt II of the Native Title Act (cf Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 at [10]-[11] and Dowsett J in Gudjala People #2 v Native Title Registrar (2009) 182 FCR 63 at [12]-[15]), determination of native title pursuant to an application under the Native Title Act is an exercise of judicial power (cf George at [10]). If registration of a native title claim sufficed to establish self-evident legitimacy of that claim, there would be no need for the native title application to be considered by the Court in order to determine whether the claim of native title is substantiated, and this is clearly not the case under the legislation. 29 At the hearing of 17 October 2012 Mr Boge for various pastoral respondents submitted as follows: MR BOGE: Your Honour, I will be brief. At the previous directions hearing I offered the diagnosis that this claim was clinically dead. Now, that diagnosis was based on the claim's history and the symptoms detailed in the applicant's own material. Now, it seems the patient's treating doctor - to keep the analogy going - is saying, "Oh, sorry, we don't suffer from the symptoms we told you about before. But we want to do more tests, just to make sure." 30 While somewhat colourful, in my view these comments are also accurate.

Abuse of process 31 Second, and in any event, I consider that the application should be dismissed for abuse of process pursuant to r 26.01(1)(d) of the Federal Court Rules. 32 The concept of "abuse of process" was examined in detail by the High Court of Australia in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256. In that decision Gleeson CJ, Gummow, Hayne and Crennan JJ said at [6]: Accordingly, in Hunter v Chief Constable of the West Midlands Police Lord Diplock used the term "inherent power" rather than "inherent jurisdiction". In Walton v Gardiner, the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter in which Lord Diplock spoke of "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". His Lordship went on to describe as "very varied" the circumstances where "abuse of process" can arise… (footnotes omitted.) 33 More recently in Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 at [89] Gummow ACJ, Hayne, Crennan and Bell JJ observed: As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW), "[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories". In Ridgeway v The Queen, Gaudron J noted that the concept extended to proceedings "instituted for an improper purpose", and to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: "(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute." 34 Section 37M of the Federal Court of Australia Act provides, inter alia, that the overarching purpose of the Federal Court Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Section 37N of that statute requires the parties to proceedings to conduct the proceedings consistently with that overarching purpose. 35 While the progress of native title claims through this Court can be slowed by, inter alia, protracted negotiations and the need for supplementary anthropological research, such factors do not derogate from the obligation of an applicant to prosecute its claim. As Reeves J remarked in Isaacs on behalf of the Turrbal People v State of Queensland [2011] FCA 828 at [10] the overarching purpose expressed in s 37M of the Federal Court of Australia Act applies equally to native title litigation as it does to any other civil litigation in the Court. 36 There is no evidence before the Court as to costs incurred by the parties in relation to the current application, although I note that the application has been on foot for over four years and has been in Court on a significant number of occasions during that time. In any event, in no way could the resolution of the current application be described as quick or efficient. 37 As I noted earlier in this judgment, over the course of four years the applicant has repeatedly sought to reformulate its claim. It wishes to continue to do so. There is no reason to conclude that this process will not continue for an indeterminate time. The Wiri respondents submit that nothing of substance has, on the evidence, occurred for over two years. I agree. The resources of the respondents are not infinite, and at this stage it is clear that, notwithstanding the passage of four years, the respondents are as yet not in a position to know the case they are to meet. No resolution of this application is in sight. I am not persuaded by the submissions of the applicant, or evidence before me, that this situation is likely to change. There is no material before me at present to support an inference that the applicant does not want to expeditiously prosecute its case - however I consider that there is ample material before me to suggest that the applicant is unable to do so, simply because the evidence it has gathered does not support the case it seeks to prosecute. 38 I do not consider that it is in the interests of justice to the respondents, or in accordance with the overarching purpose of civil litigation in this Court as prescribed by s 37M of the Federal Court of Australia Act, to permit this proceeding to continue indefinitely while the applicant continues to attempt to construct its claim. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.