Button v Chapman on behalf of the Wakka Wakka People

REASONS FOR JUDGMENT 1 There are sixteen persons named as applicants in these proceedings, on behalf of the Wakka Wakka People. The anthropologist engaged by the Gurang Land Council, which formerly acted for the applicants, has identified some fifteen descent groups within the larger group. The affidavit material filed by the Gurang Land Council, which is relied upon by one of the applicants who responds to this motion, shows that meetings were convened before the application was brought. The affidavits relating to authorisation, as required by s 62 of the Native Title Act 1993 (Cth) were filed. I do not understand the applicant on the motion to contend that those requirements were not met. His submissions, as to concerns about authorisation, have a different context. 2 Mr Button, the applicant on the motion, explains that he did not attend the authorisation meetings because he did not believe that an amalgamation of the various groups would work. He describes himself as a person having particular responsibility for the Cherbourg area, although this may not be accepted by others who have filed affidavit material through the Gurang Land Council in response to his. There are some other applicants who share his views. They appear to number three, Sam Joe Murray Jnr, George Bone and Reggie Little. 3 The Gurang Land Council no longer represents the applicants. I take it that this in large part resulted from a refusal of some of them to provide instructions or to act in concert with the other applicants. The Queensland South Representative Body represents Mr Button on this motion. It was not suggested that the three 'descent applicants' were applicants in the motion to strike out or that they were represented upon it, although they have filed affidavits in support of the motion. In any event, something of an impasse would appear to have been reached. 4 Mr Button seeks an order striking out the application as an abuse of the process of the Court under O 20 r 2(1)(c) of the Federal Court Rules. Mr Button says that he believes the application is doomed to fail, because the applicants can no longer act together, as s 61(2)(a) and (c) of the Native Title Act requires them to do. He says that a mediation of the problem is pointless and a meeting to replace the current applicants would not be successful. 5 Senior Counsel appearing for Mr Button confirmed that the single basis for the motion was that the proceedings were an abuse of process because they were doomed to fail for the reasons outlined. It was not accepted that a more appropriate course would be to remove those three applicants who apparently no longer wish to take part in the continuance of the application. As I understand it, Mr Button and the Queensland South Representative Body wish to have this application removed so that they are able to bring their own application in a situation where it is capable of registration. This would not be the case if the present application remained on foot with respect to the larger native title claim group. 6 The basis for the motion is misconceived. It cannot be said that a claim for a native title determination is an abuse of the Court's process because there is a lack of unanimity as between those said to represent the native title claim group. The decision relied upon by the applicant on the motion confirms that the jurisdiction of a superior Court to stay (or dismiss) proceedings as an abuse of process extends to cases '…in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness': Walton v Gardiner (1993) 177 CLR 378 at 393 ('Walton') per Mason CJ, Deane and Dawson JJ. Proceedings will constitute an abuse of process if they can clearly be seen to be 'foredoomed to fail': Walton at 393. As their Honours observed in such a circumstance it would be unjustifiability oppressive and vexatious to expose an objecting respondent to them. Their Honours were clearly referring to a case which should be said to have no merit, to be untenable. Other case law confirms this. Other examples of abuses, such as a proceeding being brought for improper purposes are not said to apply here. 7 This is not a case where it could be said that the claim itself has no merit. Indeed Mr Button does not say so. His contention is that the other thirteen co-applicants will not be able effectively to continue without the support of the three dissident co-applicants. Section 66B of the Native Title Act does not permit those three to be replaced, except with the authority of the native title group. That there may be difficulties experienced in moving the application forward in these circumstances does not render it an abuse of process. It may however require the Court to use its powers under O 6 of the Rules to resolve some deadlock. The most obvious solution would seem to me to remove the three persons who now say that they cannot agree with their co-applicants. Presumably they did when they accepted the appointment. 8 The motion to strike out the application will be dismissed. That leaves the question as to what steps should be taken to enable the matter to be progressed. 9 The two of the thirteen applicants who appeared on the motion were unrepresented and argument concerning the nature of the representative role of an applicant in native title proceedings such as these was therefore not developed. The submissions for Mr Button did not go beyond the assumption that all applicants must act with unanimity. Inferentially at least it seems to have also been assumed that the three dissident applicants have to remain as applicants but I do not see why that should be so. This may involve a misunderstanding about the position of an applicant which, in cases such as this, does not involve a personal right. The proceedings are largely representative in nature. It does not seem to me that the removal of the three persons would leave the native title claim group not properly represented. If their role as applicants has become untenable and the proceedings and the interests of others delayed, the Court has power to remove them under Order 6 of the Rules. If they wish to dispute aspects of the claim, they may apply to the joined as respondents. They may wish to bring a separate claim. 10 I would be inclined to make such an order now. However, whilst it is clear from their affidavits who the three dissident co-applicants are and that they are unable to continue, they have not been given an opportunity to make submissions about it. At the same time, whilst the Court might act of its own motion to remove parties, it is obviously preferable if the other thirteen co-applicants considered whether that is a course they would wish to take. They should also consider whether they wish to proceed with the claim in its present form particularly in light of the anthropological evidence which is becoming available. 11 I will therefore order that the motion be dismissed and give directions for the applicants, other than the three I have named above, to confer with respect to those topics within a certain time frame. If no application is brought to the Court, the matter will be listed for directions. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.