Should the application be dismissed?
32 A noteworthy and commendable feature of the submission made by the Applicant's solicitor and of the supporting affidavit evidence was their candour. It was stated in the Applicant's written submission:
The Applicant has not yet sought to again amend the Application since the date of the registration test decision. However such a course of action has not been dismissed by the Applicant. The Applicant cannot properly consider its position in this regard until such time as there is further anthropological research undertaken in respect of the claim.
The Applicant apprehended that there were two primary reasons why the claim had failed the registration test. As put in the written submission, these were submitted to be:
(a) The initial decision of Justice Dowsett in The Gudjala People # 2 v Native Title Registrar [2007] FCA 1167 was the applicable law at the time of the registration test.. The requirements for registration testing as enunciated in that decision (particularly those as apply to s 190B(5)(a) and (b)) have been softened somewhat by the recent full court decision in that matter.
(b) There was a lack of material placed before the registration test delegate such that would allow her to satisfy herself as to the requirements of a factual basis to the claim as required by s 190B(5)(c).
[sic]
33 Regard to the Delegate's reasons confirms a reference by her to the judgement of Dowsett J in The Gudjala People # 2 v Native Title Registrar in the course of her consideration of the factual basis for the assertions described in s 190B(5)(a) and (b), but not in her consideration of s 190B(5)(c). His Honour delivered judgment in that case on 7 August 2007. There was delay in the institution of an appeal against his Honour's decision. Further, the appeal was not heard until 14 May 2008, i.e. after the Delegate had made her decision. On 27 August 2008 the Full Court allowed the appeal. At the time when she reached her decision reference by the Delegate to the judgment of Dowsett J in The Gudjala People # 2 v Native Title Registrar was both understandable and appropriate.
34 My assessment of why, having regard to the Delegate's reasons, she decided not to accept the claim for registration accords with that of the Applicant's solicitor.
35 It was submitted on behalf of the Applicant that the jurisprudence which has developed in this Court in relation to the striking out under s 84C of the Native Title Act of an application on the basis of a failure to comply with the requirements of that Act was relevant by analogy to the dismissal of an application pursuant to s 190F(6). That jurisprudence, of which Williams v Grant [2004] FCAFC 178 and Bodney v Brophy [2004] FCAFC 226 are exemplars at intermediate appellate level, evidences an application in the particular context of the dismissal of a native title application, of the reticence which customarily attends the summary dismissal of a proceeding under a rule such as, in this Court, O 20 r 4 of the Federal Court Rules, having regard to root authorities on the subject such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 and Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91.
36 Section 84C of the Native Title Act highlights an ability to strike out an application on a particular basis. It expressly recites that it is not exhaustive of the making of any other application to strike out the application for the determination of the native title claim: s 84C(4). Other bases which suggest themselves are pursuant to O 20 r 4 of the Federal Court Rules or under s 31A of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). Another is pursuant to s 190F(6) of the Native Title Act.
37 Section 31A of the Federal Court of Australia Act expressly modifies the position which would otherwise prevail, having regard to the root authorities mentioned, in the determination of whether an application has reasonable prospects of success. A question which emerges is whether s 190F(6), like s 84C, merely highlights a particular basis for summary dismissal leaving the general law on that subject applicable or whether it, too, should be regarded as providing a unique power of dismissal which "is to be construed and applied according to its terms, not under the influence of 'muffled echoes of old arguments' concerning other legislation": Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404, at 414.
38 Subsection 190F(6) is found within Pt 7 of the Native Title Act, which is concerned with the registration of native title claims on the Register established under that Part. It was added to the Native Title Act last year by the Native Title Amendment (Technical Amendments) Act 2007 (Cth) (The Technical Amendments Act); by s 3 and Sch 1, Pt 1, item 107 of that Act.
39 On its face, s 190F(6) of the Native Title Act appears to provide for a wholly self-contained power of dismissal. The ability to exercise that power is engaged only by the fulfilment of conditions precedent which are set out in s 190F(5). Once engaged, the subsection itself sets out, in para (a) and para (b) the considerations which are relevant.
40 Paragraph (a) of s 190F(6) is concerned both with the then present and the predicted state of the application for determination of the native title claim, with what the subsection terms "the application in issue". The immediate end to which the paragraph is directed is whether there is any feature of the application which has changed or is "likely" to change in the future which would lead to a different registration decision by the Registrar. The amendment of an application by leave of the Court gives rise to an obligation on the part of the Court's registrar to give the Registrar a copy of the amended application: s 64(4) Native Title Act. In turn, and subject to exceptions which it is not necessary to detail, that triggers an obligation on the part of the Registrar to consider whether to accept for registration the claim as made in that amended application: s 190A(1) Native Title Act.
41 Paragraph 190F(6)(b) seems to have been added out of an abundance of caution as something of a "fail safe" so as to enable justice to be done in the circumstances of a particular case. It is joined by the conjunctive, "and" to paragraph (a), which indicates that the opinion for which it provides must also be formed before the s 190F(6) dismissal power may be exercised.
42 That is not to say that it constitutes an invitation to preserve an application on the basis of whimsy or sympathy. Paragraph 190F(6)(b) contains a double negative - "no other reason why the application in issue should not be dismissed". Casting the paragraph in that way and using the adjective "other" might be thought infelicitous drafting given that s 190F(6)(a) supplies a reason why an application should be dismissed. Be this as it may, given the terms of s 190F(6)(a) and as a matter of construction, the "other reason" must be found in something other than the prospect that the amendment of the application will occasion a different outcome in relation to the s 190B conditions when the amended application is considered by the Registrar. When it is recalled that the opinion based on that "other reason" would provide a basis for the preservation of an application even though the claim made in that application had not been accepted for registration because a condition in s 190B was not met, even though review remedies had been exhausted, even though there had been no subsequent amendment of the application and even though the Court could not be satisfied in relation to the prospect of any amendment of the application in the way described in s 190F(6)(a), one might think that, the circumstances warranting the formation of that opinion would be very singular indeed. It is though, neither necessary nor appropriate, to delineate in advance what those circumstances might be. Trite though the observation may be, they will be case specific.
43 Within s 190F(6)(a), the meaning to afford the word "likely" is elusive. The judgments delivered by Bowen CJ (with whom Evatt J agreed) and Deane J in Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331 in relation to the meaning of that word as it appears in s 45D of the Trade Practices Act 1974 (Cth) nicely illustrate why this is so. Sir Nigel Bowen observed (at 339-340):
The word "likely" is one which has various shades of meaning. It may mean "probable" in the sense of "more probable than not" - "more than a fifty per cent chance". It may mean "material risk" as seen by a reasonable man "such as might happen". It may mean "some possibility" - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.
In Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd. (1976) 27 FLR 400 Bray C.J. had to consider the meaning of the word "likely" in s. 139B of the Post and Telegraph Act 1901-1973 (Cth). The context, of course, was different. However, Bray C.J. concluded it meant "more probable than not" in that context. His Honour expressed the view that that was the natural and ordinary meaning of "likely", though he referred also to the rules of construction applicable where the statute being interpreted is a penal statute or one which, as in the case of s. 139B, imposed an additional liability beyond the liability in tort.
It was suggested by Joske J. in Trade Practices Commission v Total Australia Ltd. (1975) 24 FLR 413 that "likely" in s. 47 (5) of the Trade Practices Act was equivalent to "calculated" and he referred to Thurley v Hayes (1920) 27 CLR 548, at p 551 . However, in that case "calculated" was interpreted to mean "likely" in order to rid the word of its overtones of intention.
…
The circumstances to which s. 45D may apply are so various that I hesitate to place a gloss on the section by preferring one meaning of "likely" rather than another for the determination of this particular case. It is unnecessary to do so, because I have formed the view that whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established.
Mr Justice Deane observed (at 346-347):
The word "likely" can, in some context, mean "probably" in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance ("an odds-on chance", per Lord Hodson in Koufos v. C. Czarnikow Ltd. [1969] 1 AC 350, at p 410 and see, as to the meaning of the word "probable", Eggleston Evidence, Proof and Probability (1978), p. 10 et seq). It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to "prone", "with a propensity" or "liable". When so used, it is sometimes equated with the concept of foreseeability in the law of negligence (see, for example, Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd. (Wagon Mound No. 2) [1967] 1 AC 617, at pp 634-635 ; Callaghan v. Wm. C. Lynch Pty. Ltd. (1962) 79 WN (NSW) 830, at p 835 ). Thus, if I fire a rifle through drawn curtains into a quiet lane in a country village, it is not likely, in the sense of more likely than not or an odds-on chance, that I will injure anyone. It would, however, be difficult to deny that there was a real chance or possibility (or likelihood in that sense) that an occasional passer-by would be wounded by the bullet. Plainly, the act of firing a rifle through drawn curtains into a lane used by pedestrians would be an act which was, in the circumstances, prone or liable (likely in that sense) to cause injury to a passing pedestrian.
In Australian Telecommunications Commission v. Krieg Enterprises Pty. Ltd. (1976) 27 FLR 400, Bray C.J., after an instructive consideration of relevant authorities, expressed the view that the ordinary and natural meaning of the word "likely" is synonymous with the ordinary and natural meaning of the word "probable" and both words mean that there is an odds-on chance of the thing happening. His Honour added that statutes containing the words have usually been construed that way, particularly so where the statute is a penal statute or is imposing an additional liability in tort. This view, if accepted, would lead to the conclusion that, prima facie, the word "likely" in s. 45D (1) means probably in the sense of more likely than not. While dictionary definitions and examples of judicial and lay usage can be adduced to offer strong support for that view, I am unable to accept that likely is synonymous with "more likely than not" or that if there is a 49.9 per cent chance of an event occurring it would ordinarily be denied that it was likely (or "quite likely") that the event would occur. Nor does it appear to me that there is a presumption that, in a legislative provision proscribing conduct that is likely to cause loss or damage to another, the legislative intent was that conduct which had a 49.9 per cent chance of causing such damage was to be outside the proscription.
44 Thus, depending upon the context in which it appears, "likely" can mean "more probable than not" or it can mean "some possibility, more than a remote or bare chance". Tillmanns Butcheries and, in turn, Australian Telecommunications Commission v Kreig Enterprises Pty. Ltd, referred to in each of the substantive judgments delivered in Tillmanns Butcheries, demonstrate the importance of context in the determination of the meaning of the word. For example, that there was a reticence on the part of this Court in Tillmanns Butcheries to confine the meaning of the word to "more probable than not" in the context a provision directed in the public interest to the proscription of a form of behaviour in trade or commerce considered by Parliament to be undesirable is, with respect, readily comprehensible.
45 The occasion for affording the word "likely" the meaning "more probable than not" in a provision directed to the dismissal of a native title application without a hearing on the merits of that application is less compelling. It is true that the occasion for the exercise of the dismissal power in s 190F(6) of the Native Title Act may arise after the Registrar's registration decision has either been administratively reviewed on the merits by the NNTT or reviewed by this Court. In the latter form of review the Court may make such decision in respect of issues of fact and law on the material then available as will do justice: Western Australia v Strickland (2000) 99 FCR 33 (Full Court). Yet the focus of these review alternatives remains the Registrar's registration decision, not a determination of the merits of the native title claim made in the application.
46 Regard pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth) to secondary materials concerning the Bill which became the Technical Amendments Act offers no assistance either in the preferable meaning to afford the word "likely" in s 190F(6)(a) or, for that matter, in the ascertainment of the purpose of the power conferred on the Court by the sub-section.
47 The reference in the explanatory memorandum to the clause which became s 190F(6) is nothing more than a paraphrase of the provision. The Ministerial Second Reading Speech (Commonwealth Parliamentary Debates, House of Representatives, 29 March 2007, p. 1) in respect of the Bill which became the Technical Amendments Act is brief, the then Attorney remarking generally of the amendments proposed in that Bill, "While these amendments are minor and technical in nature, they will substantially improve the workability of the Native Title Act." There is no reference to the proposed empowerment of the Court to dismiss an application as a sequel to a decision by the Register not to accept for registration the claim made in it and after exhaustion of review remedies in respect of that decision.
48 Amendments to that Bill were proposed in the Senate following a report by the Legal and Constitutional Affairs Committee of that House. Both in that committee's report and in Parliamentary debates one finds reference to the report of a review commissioned by the then Attorney-General of native title claims resolution processes by two members of the Queensland Bar, Mr Hiley RFD, QC and Dr Levy RFD (Hiley and Levy, Native Title Claims Resolution Review, Commonwealth of Australia, released on 31 March 2006). The report of that review was made public but it was not tabled in the Parliament. Further, the extent of its influence on the presence in the Native Title Act of what is now s 190F(6) is not made clear either in an explanatory memorandum or the Second Reading Speech. In these circumstances, I do not consider that it would be appropriate to refer to that review report for statutory construction purposes.
49 A study of secondary materials confirms what a perusal of the 2007 Amendment Act andthe Technical Amendments Act would in any event suggest, which is that the two Acts were the culmination of an endeavour to address inadequacies perceived by the Parliament in native title law and practice under the Native Title Act even after major amendments were made to that Act by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act).
50 Part 7 was inserted into the Native Title Act by the 1998 Amendment Act. In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6], Hely J remarked of the claim registration regime introduced by Pt 7 that:
6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered.
Strictly, even after the amendments made by the Technical Amendments Act, it remains true that the registration test found in Pt 7 is "not a screening mechanism for access to the Federal Court" (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court's list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the "screening mechanism".
51 Even though regard to secondary materials does not offer any particular assistance, that dismissal without a hearing on the merits may be a consequence of the Court's absence of satisfaction in relation to the criteria mentioned in s 190F(6)(a) of the Native Title Act offers one reason why I am inclined not to construe the word "likely" in that provision as meaning "more likely than not". Another is that the word appears as part of the composite phrase "is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar". Within s 190F(6)(a) that composite phrase unusually requires the making of a predictive assessment by the Court not just of the prospect of amendment of the application but of the outcome of fresh consideration of the amended application by an administrative official. To construe the word "likely" as meaning "more probable than not" carries with it a potential for embarrassment not just of the Court as constituted when making that prediction but also of the Registrar when making that fresh registration decision and, on any later review, of the NNTT or, as the case may be, of a differently constituted bench if review by the Court is the alternative chosen. The meaning of "likely" which is more consonant with such considerations is a what would reasonably be regarded as a real chance irrespective of whether that chance is greater than 50 per cent, as opposed to nothing more than a mere possibility.
52 That Parliament has provided a particular basis in s 190F(5) of the Native Title Act upon which the power to dismiss in s 190F(6) is enlivened and that, within s 190F(6), para (a) itself provides for an evaluative and predictive judgment for the Court to make in relation to an application indicates that the question of whether an application ought to be dismissed is not to be approached by reference to an a priori assumption that the jurisprudence which attends, for example, dismissal of an application under s 84C of the Act is relevant. An understanding of the basis upon which either before the Registrar or on later review it was considered that the conditions in s 190B of the Native Title Act were not met is relevant to the making of a prediction of the fate on reconsideration of an amended application but otherwise the inability of the application to meet those conditions is a given. I reject the submission that submission that the jurisprudence in relation to s 84C is relevant by analogy to the question of whether or not to dismiss an application under s 190F(6).
53 In the result, it is unnecessary to reach a final conclusion as to the meaning of the word "likely" in s 190F(6)(a) of the Native Title Act. That is because the evidence in relation to the prospect of amendment of the application did not rise beyond the level of a mere possibility.
54 In response to the call to show cause, an affidavit of Mr Dore, the Principal Legal Officer of the North Queensland Native Title Representative Body Aboriginal Corporation (NQLC) was read on behalf of the Applicant. There was no challenge to Mr Dore's affidavit by the State. I had occasion to form an impression of Mr Dore's knowledge, experience and sense of duty to the Court in relation to native title matters when he appeared before me either on behalf of an Applicant or as amicus curiae in other native title matters on the list in 3 October 2008. In light of that, I have no reason to doubt the accuracy of what he deposes to in his affidavit. From his affidavit and from statements made in the Applicant's written submissions, to which no objection was made by the State, it emerges that the NQLC is, in respect of this matter, now the relevant representative body in succession to the Central Queensland Land Council Aboriginal Corporation (CQLC). Difficulties have attended that succession. It is not necessary to detail them.
55 In or about April this year the NQLC commissioned a consultant anthropologist to review all of the anthropological material held by the CQLC, not just holdings pertinent to this application. The purpose of that review was to enable the NQLC to obtain a clear picture of the nature and extent of the material on the various claims in what had hitherto been the region for which the CQLC had had responsibility. A preliminary report was received from this consultant anthropologist in June this year. This report indicates that a detailed analysis of existing material in relation to the claim made in the present application as well as a review of material relating to two other groups will need to be done before a research programme can be put in place "to provide the necessary material for connection". I infer the latter to be a reference to material which would go to the satisfaction of s 190B(7) and also s 190B(5)(c) of the Native Title Act. Mr Dore attests that, "It would be anticipated that this research would assist with the Registration Test and that it would provide information as to whether the claim as currently formulated needs to be amended." He further attests that, "The extent to which this process can be implemented is dependent upon funding from the Department of Families and Housing and Community Services and Indigenous Affairs ... and availability of consultant anthropologists."
56 I do not in any way suggest that the material necessary favourably to be satisfied for the purposes of s 190F(6)(a) of the Native Title Act must take the form of further affidavit material, be that from an anthropologist or otherwise, going to the conditions in s 190B and a related draft amended application. That would be a counsel of perfection. There must be something though which provides a reasonable foundation for the predictive value judgment called for in s 190F(6)(a) to be made. The evidence before me did not arise above the raising of a possibility that, at some uncertain time in the future, further evidence might possibly be obtained which might, in turn, possibly generate an amendment of an unidentified kind of the application in its present form. That is a long way short of what is needed, even taking a benign view of the meaning to be given to the word "likely". Further, it is quite impossible on the evidence to reach any predictive conclusion at all as to whether any amendment would lead to a different result upon reconsideration of an application so amended by the Registrar.
57 In voicing these opinions, I do not ignore but rather accept as inherently likely that either because of the very nature of the task or availability of financial resources or trained personnel (or a combination of such factors) a long lead time might attend the obtaining of anthropological evidence.
58 The Applicant's submission, it may be recalled, contended that the Full Court's decision in the Gudjala People # 2 case (supra) had "softened somewhat" the requirements for registration testing (particularly in relation to s 190B(5)(a) and (b) of the Native Title Act). The relevance of this contention was not developed in the submission.
59 In the Gudjala People # 2 case (supra, at [90] to [92] ) the Full Court offered the following guidance as to the inter-relationship between s 62 of the Native Title Act, which relevantly governs the material to be contained in a claimant application such as the present and the consideration of a claim for registration for which s 190A of that Act provides and the ramifications of that inter-relationship in terms of satisfaction by the Registrar or the NNTT or the Court on review that the conditions in s 190B of the Act are or are not met.
[90] A convenient starting point, in considering the correctness of his Honour's approach, is to consider the interaction between s 62 and s 190A in the terms they were in at the time the application was lodged. The former provision prescribes what an applicant must do to commence an application. The latter provision establishes a statutory regime under which the Registrar of the Tribunal assesses the application to determine whether it should be accepted. It is tolerably clear that what the assessment entails is informed by what is required of an applicant to commence an application. Indeed, there is no reason to doubt that this statutory scheme contemplates that it would be open to the Registrar to accept an application based on the application, including the accompanying affidavit, without having regard to other information of the type referred to in s 190A(3). Accordingly, the statutory scheme appears to proceed on the basis that the application and accompanying affidavit, if they, in combination, address fully and comprehensively all the matters specified in s 62, might provide sufficient information to enable the Registrar to be satisfied about all matters referred to in s 190B. This suggests that the quality and nature of the information necessary to satisfy the Registrar will be of the same general quality and nature as the information required to be included in the application and accompanying affidavit. Of course, if an applicant fails to fully and comprehensively furnish the information required by s 62 then there is a risk that the Registrar will not accept the claim although that risk is ameliorated by the power of the Registrar to consider information additional to that contained in the application, including documents (other than the application) provided by an applicant: see s 190A(3)(a).
[91] What then is the nature and quality of the information required by s 62? In substance, s 62(1) requires that the accompanying affidavit must contain evidence that the applicant believes the claimed rights have not been extinguished, believes none of the claimed area is covered by an entry in the Register, believes all the statements made in the application are true and that the applicant is authorised to make the application. The application must contain the details specified in s 62(2) and may contain details of the matters referred to in s 62(1)(c). There is an obvious link between the requirement that the evidence of the applicant include a statement that the applicant believes that all the statements in the application are true and the requirement that the application contain the details specified in s 62(2) together with the identification of the details in that subsection.
[92] Of central importance in this appeal are the details specified by s 62(2)(e), namely details which constitute a general description of the factual basis on which it is asserted that the native title rights and interests claimed existed and, in particular, the matters referred to in ss 62(2)(e) (i), (ii) and (iii). Those details are in aid of the description, with some particularity, required by s 62(2)(d) of the asserted native title rights and interests. The fact that the detail specified by s 62(2)(e) is described as "a general description of the factual basis" is an important indicator of the nature and quality of the information required by s 62. In other words, it is only necessary for an applicant to give a general description of the factual basis of the claim and to provide evidence in the affidavit that the applicant believes the statements in that general description are true. Of course the general description must be in sufficient detail to enable a genuine assessment of the application by the Registrar under s 190A and related sections, and be something more than assertions at a high level of generality. But what the applicant is not required to do is to provide anything more than a general description of the factual basis on which the application is based. In particular, the applicant is not required to provide evidence of the type which, if furnished in subsequent proceedings, would be required to prove all matters needed to make out the claim. The applicant is not required to provide evidence that proves directly or by inference the facts necessary to establish the claim. (Emphasis added).
60 The Full Court observed (supra, at [93]) that, "[We] think there are observations of the primary judge in his reasons which suggest that his Honour approached the material before the Registrar on the basis that it should be evaluated as if it was evidence furnished in support of the claim. If, in truth, this was the approach his Honour adopted, then it involved error." This observation though did not form the basis upon which the appeal in the Gudjala People # 2 case was allowed. The appeal was allowed on the basis of an error perceived by the Full Court in the way that learned trial judge had evaluated and come to discount the report of an expert anthropologist, Mr Hagen which formed part of the application for determination of native title. That evidence had been criticised or in many respects rejected on the basis that it "provides opinions and conclusions rather than any alleged factual basis for such opinions and conclusions or for the claim".
61 That was held to be in error for two reasons. It was inconsistent with the position under the Evidence Act 1995 (Cth) in which a "basis rule" requiring facts upon which an expert opinion or conclusion is based to be established before that opinion or conclusion is admissible does not prevail. Rather, under that Act, an absence of establishment of such facts may diminish the weight to afford that opinion or conclusion. Further, it ignored the position that expert anthropological evidence may not necessarily be opinion evidence at all but rather be direct evidence of the anthropologist's observations and thus admissible in the ordinary course. Even though Mr Hagen's report did not fall for consideration by reference to questions of admissibility that would arise on a trial of the application, the Full Court (supra, at [96]) considered that his Honour's erroneous conception "affected his approach in assessing the matters required to be considered by s 190B(5)".
62 Certainly, in evaluating for the purposes of s 190F(6)(a) of the Native Title Act the prospect of a different outcome an amended application was considered by the Registrar, it is necessary to make that evaluation informed by what was said by the Full Court in the Gudjala People # 2 case, particularly in the parts I have emphasised in the passage from the Full Court's judgement quoted above
63 Even though, by the time when a show cause proceeding under s 190F(6) is conducted, the occasion for the review of an adverse registration decision will have passed, I am prepared to accept that, for the purposes of s 190F(6)(b), an "other reason" might be found for not dismissing an application in circumstances where later judicial authority in another case disclosed that the Registrar's approach to whether the conditions in s 190B had been satisfied had been overly rigorous.
64 Even allowing for such matters, it seems that the Applicant acknowledges that in its present form the application is wanting in detail, especially in the provision of a factual basis for an assertion that the native title claim group have continued to hold the native title in accordance with acknowledged traditional laws (s 190B(5)(c)). It is not clear to me, having regard to what I have regarded as key passages in the Delegate's reasons and quoted above, that her conclusions in relation to s 190B(5) were wholly attributable to the influence of decision of Dowsett J in the Gudjala People # 2 case. In the absence of a more developed and particularised submission as to the ways in which, having regard to her reasons, his Honour's reasons for judgment in the Gudjala People # 2 case impacted upon the Delegate's reasons and how the outcome may have differed in light of the observations of the Full Court further consideration of this subject is not, in my opinion, warranted.
65 It was further submitted on behalf of the Applicant that the State was aware of the status of the application.
66 It is relevant to note that the State has not moved under s 190F(6) to strike out the application but neither is it necessary that it do so. The Court is empowered under this sub-section to dismiss an application of its own motion. That may perhaps evidence a recognition by the Parliament that, even where the claim made in an application has proved incapable of furnishing, even at the registration stage, a factual basis for the assertions mentioned in s 190B, a respondent body politic may be unable or unwilling to seek dismissal of that application. If so, that recognition is unarticulated in secondary materials.
67 It does not do to speculate further on the Parliament's motivation for conferring such a power on the Court. The fact is that the power exists and its exercise is necessarily attended with a procedural fairness obligation; hence a need for a show cause proceeding.
68 While the State did not move to seek the dismissal of the application, it did submit that it was open for the Court to take this course of its own motion. I infer from this that the State did not consider that there was, in terms of s 190F(6)(b) of the Native Title Act, some "other reason" why the application should not be dismissed.
69 The stance adopted by the State does not, in my opinion, provide a basis for the preservation of this application.
70 The Applicant also referred in submissions to leadership which the authorised persons had provided to the native title claim group in various activities including the negotiation of an indigenous land use agreement under the Native Title Act. It was said that none of this was possible prior to the filing of the application and that "All of that progress would be lost were the application to be struck out." None of this was challenged by the State.
71 Regard to s 61(1) of the Native Title Act discloses that a native title determination application must be made by persons authorised by all the persons in the native title claim group. Want of due authorisation was not the reason why the claim made in the application was not accepted for registration. I am certainly prepared to infer that, in this case, those who came to be authorised persons for the purposes of the application gained recognition as leaders which facilitated other beneficial endeavours. It is not at all clear to me why their qualities of leadership would be lost if the application is dismissed. In any event, collateral advantages only at best tangentially related to the presence of a native title application on the Court's list do not, in my opinion, provide a reason not to dismiss this application. I should add that I have not formed any adverse view whatsoever about the character of the authorised persons.
72 Such anthropological and other evidence as has been gathered to date to provide a factual basis for the application will not be destroyed by the dismissal of the application. Neither will dismissal result in a determination on the merits of the application. It will be for the members of the native title claim group or of such other claim group as further evidence may suggest to take such action as they may be advised in relation to the bringing of a fresh application. Dismissal under s 190F(6) of this application will not prevent the bringing of a further application if that is the course advised.
73 I am satisfied that the application has not been amended since it was considered by the Delegate. I am also satisfied that the application is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar. I am further of the opinion that there is no other reason why the application should not be dismissed.