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

REASONS FOR JUDGMENT DOWSETT J: 47 I have read the reasons prepared by Mansfield and Jagot JJ. I shall not repeat the facts of the case. 48 The primary Judge was prompted to consider the future conduct of this case by reference to the appellant's past conduct over a considerable period of time. In particular it had failed to resolve, in a timely way questions going to the description of the claim group. In December 2010 and subsequently, her Honour ordered that information be provided concerning that matter, in particular the status of Maggie Barker as an apical ancestor. The appellant did not comply with those orders. At some time prior to June 2011 it was decided that an anthropologist, Dr Sackett should conduct research into the matter. In June 2011 Dr Sackett suggested that the "soundest claim" would be by an extended claim group over an extended area, possibly involving the identification of sub-groups having special interests in particular parts of the extended claim area. The appellant accepted that proposal, subject to there being agreement amongst the various groups which would comprise the extended claim group. Dr Sackett provided his report in January 2012. He was inclined to the view that Maggie Barker was not a Barada Barna woman, and that she had not been connected, during her lifetime, with locations within Barada Barna country. That view was potentially damaging to the appellant's case. 49 On 30 May 2012 the appellant's solicitors reported to the Court (the "May report"). I attach a copy of that report. I infer that it was written on instructions from the appellant. It demonstrates a clear intention to proceed in accordance with Dr Sackett's advice. This intention seems to have been inconsistent with any intention further to prosecute the existing application. Even at that stage it may have been appropriate to call on the appellant to show cause why the existing application should not be dismissed. 50 Notwithstanding the appellant's statements of intention, it seems that it had already commissioned other reports from Dr Gorecki, Mr Jefferies and Professor Rigsby which, according to the appellant's submissions, it received between 9 March and 24 July 2012. Two of the reports are dated March and May 2012, suggesting that they were probably received prior to the May report. The other report was dated July 2012. On 26 July 2012, the appellant's solicitor again informed the Court that the appellant proposed to proceed with negotiation of the extended claim in accordance with Dr Sackett's advice. On 13 September 2012 the appellant's solicitor again told her Honour that the appellant was willing to continue with those negotiations. On that date her Honour called on the appellant to show cause. However, on 17 October 2012, when the show cause proceedings were heard, the appellant apparently indicated its intention to prosecute the existing application. The appellant suggests that QSNTS had indicated that it would no longer facilitate negotiations within the larger group, and that this decision led the appellant to abandon that option. I suspect that her Honour's notice to show cause was at least one reason for the appellant's doing so. 51 It appears that, at the hearing, Her Honour understood that the appellant proposed to prosecute the existing application. However she inferred from its prior conduct in seeking further evidence and pursuing Dr Sackett's alternative solution, that it considered that it could not successfully do so on the available evidence. Her Honour appears to have understood that the appellant was looking around for evidence which might support its case, however she doubted whether it would be successful. 52 Before considering the correctness or otherwise of the primary Judge's reasons, it is appropriate that I say something about case management generally, and in Native Title cases. Case management may take many forms. In some cases, it may deal with the well-established process for bringing matters to trial, which process has been in place in most common law jurisdictions since the adoption of the Judicature Act reforms in the late nineteenth century. That process involves various recognized procedural steps such as delivery of pleadings, discovery and the delivery of interrogatories. In more recent times, other steps have been incorporated into case management, including mediation, conferences between or amongst expert witnesses and the exchange of witness statements. Many Judges have developed other routine or bespoke case management techniques. In all such cases, the aim is to ensure that the case progresses towards trial whilst, at the same time, encouraging discussion and co-operation amongst the parties so as to maximize the exploitation of opportunities for settlement and/or narrowing of the issues. In that model of case management, the threat of a credible trial date is frequently used to encourage appropriate discussion and co-operation. 53 In Native Title matters case management generally takes a somewhat different form, because: the cases are frequently launched without sufficient prior preparation; there are difficulties inherent in conducting litigation which is effectively representative in nature; there are difficulties inherent in proving the factual issues which typically arise in such cases; and there are inadequate resources. 54 Such resources as are available may often be better utilized in investigation and seeking agreement than in preparing for trial. However the absence of credible, or any trial dates may result in there being insufficient motivation for the efficient and timely conduct of the case. Experience suggests that practitioners and expert witnesses involved in Native Title cases sometimes lose sight of the fact that claim groups are generally anxious to attain recognition of their claims. Non-government respondents are also frequently anxious to have the certainty which only the final resolution of a Native Title claim offers. 55 Since about 2003 in Queensland, the approach to case management has been to encourage clarification of issues and resolution by agreement, initially without the threat of a trial and frequently, without compelling parties to take steps which are designed to lead to a trial. In adopting this approach the Court allows the parties time in which to focus on investigation and negotiation. However that method of case management is frequently too open-ended. Even the most indulgent case manager must insist on measurable progress. In order to ensure such progress, the Court may allow limited time for investigation and negotiation, in conjunction with a timetable for advancing the matter towards trial. Thus a failure to reach agreement on a particular aspect may result in a requirement that a procedural step be taken within a prescribed time. The Court cannot compel parties to agree, and so the sanction for failure to agree cannot properly be dismissal of the proceedings. However failure to comply with an order to take a recognized step towards trial may properly be dealt with as failure to comply with a Court order, with whatever consequences may follow. 56 In general litigation, case management occurs in the context set by the pleadings. In Native Title cases, case management regularly occurs in a less clearly defined context. The statutory form of application is generally an unsatisfactory combination of application and statement of claim, frequently involving the indiscriminate use of language borrowed from the Native Title Act 1993 (Cth) and/or the cases. It frequently reflects inadequate research and undue haste, often brought about by awareness of a proposed development about which the claim group wishes to negotiate. There is virtually never a defence. The common expectation is that, over time, negotiations will lead to agreement. My own view is that a more rigorous insistence on pleadings would bring about quicker and less expensive resolution of Native Title claims. However that view is not directly relevant for present purposes. 57 The Court cannot allow the parties to investigate and/or negotiate indefinitely, and without any progress towards trial. Eventually, in the absence of agreement, preparation for trial must become the dominant aim of case management. In some cases, that point may be reached because the parties have simply been unable to agree. In others it may be that the parties have not really tried. In either case the Court will generally adopt a more prescriptive approach to case management, perhaps by fixing a timetable designed to bring the matter to trial, or by fixing time limits within which particular steps are to be taken. In some cases, the parties may find it difficult to respond to a sudden change in the case management goals. To some extent, the Court will have to accommodate that difficulty. After all, it will, in part be the product of the way in which the Court has previously managed the case. In some cases, it may be necessary to allow the parties a significant period of time in which to adapt to the new case management regime. The prior history of the matter will generally be relevant to the length of time which the Court allows for that purpose. 58 This case seems to have reached the point at which the primary Judge decided that more prescriptive case management was necessary. However, no doubt because of her views as to the appellant's prior conduct of the case and perhaps, the view that the appellant had effectively abandoned the existing application, the primary Judge considered that she should address the viability of the proceedings. That approach may have been appropriate, but it required that her Honour consider carefully the history of the matter, and the opportunities for rectifying any past shortcomings. In this case, primary considerations were the appellant's failure to address the problems with the claim group description and the difficulties created by differing anthropological evidence. 59 If the primary Judge considered, as I suspect she did, that the appellant had effectively abandoned the existing application, then that proposition should have been put to it for comment. The same purpose might have been served by asking why the appellant had departed from the course proposed in the May report. These matters seem to have been the immediate cause of her Honour's concern and ought to have been the basis upon which she ordered the appellant to show cause. Had that approach been taken, the primary Judge would have had to consider whether the appellant had abandoned the existing application and, if so whether it should be allowed to depart from such abandonment. If the appellant asserted that it had not abandoned the existing application, and her Honour accepted that assertion, then the question would have been whether to exercise the discretion summarily to dismiss the proceedings on the ground that they had no reasonable prospects of success. That process would necessarily have involved an examination of the case as it appears in the application, and of such evidence as was available, or which the appellant reasonably hoped to obtain. If the appellant conceded, or her Honour found that the existing application had been abandoned, but the appellant wished to depart from that abandonment, then her Honour would have had to consider whether to permit that course. Again, the prospects of success would be a relevant consideration, as would be the history of the matter. 60 A third possibility is that the appellant accepted that it had abandoned the existing application, stood by that decision and wished to investigate a possible alternative case. It may, nonetheless, have wished to keep the existing application on foot in order to maintain existing negotiating rights. In that case her Honour would have had to consider whether to allow the existing proceedings to remain on foot, pending the commencement of new proceedings. 61 In all of these possible approaches to the problem, prospects of success and/or possible abuse of process may have arisen. Whether the primary Judge was considering summary dismissal on the ground that the existing claim lacked reasonable prospects of success or dismissal as an abuse of process, her decision would necessarily involve the exercise of a discretion. Thus the approach prescribed in House v The King (1936) 55 CLR 499 would apply to any appeal, at least with respect to some aspects of the case. 62 Whilst the primary Judge may have had reason to believe that the appellant was concerned about the adequacy of its evidence to prove the existing claim, the discretion to dismiss for want of reasonable prospects of success would only arise if her Honour were satisfied that there were no reasonable prospects of success. The appellant's apparent lack of confidence was not a proper basis for reaching that conclusion. The desire to find further evidence in support of the claim did not necessarily show that the presently available evidence was insufficient. Her Honour was obliged to consider the available evidence, as well as any suggestion by the appellant that other evidence might reasonably be available. Given the history of the matter her Honour might reasonably have refused any request by the appellant for more time in which to find evidence. However, to the extent that it relied on available evidence, such evidence had to be examined and any inadequacy identified. Her Honour seems not to have performed this function. The second respondent submits that the appellant's case would have failed because of the difficulties with identification of the claim group. That matter was certainly of concern, but it is not clear to me that the appellant would have failed because of its inability to support it on the available evidence. In any event, it is clear that her Honour did not approach the matter in that way. 63 As to abuse of process, her Honour's decision appears to have been based on the fact that the appellant had again sought to re-formulate its claim. That may have been the case as at 13 September 2012. However, by 17 October 2012, the date of hearing, it had committed itself to the existing application. As I have said, her Honour had to decide whether it was open to the appellant to take that course. She seems to have accepted that it could. 64 Her Honour found abuse of process on the basis that the appellant's evidence did not support the existing application. As I have demonstrated, such a view could only be justified by reference to the evidence, a step which her Honour did not take. Thus I conclude that her Honour's exercise of the discretion miscarried in that she chose to rely on an inference which she considered was available from the appellant's conduct in seeking further evidence, and without regard to evidence which seems to have offered at least some support for its case. 65 I agree that the appeal should be allowed. The orders made below should be set aside. I would make no order as to costs. 66 I add two further comments. I do not accept that proceedings in this Court should necessarily be delayed in order to accommodate discussions between, or the resolution of differences between Native Title representative bodies. I also doubt whether statutory exhortations concerning negotiated settlements have much relevance to a Native Title case which has, in one form or another, been in the offing since 1997. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

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