Close on behalf of the Githabul People #2 v State of Queensland

Federal Court of Australia|2010-08-06|Before: Collier J

Background 6 In summary: · In 2007 a native title determination was made by this Court in respect of land claimed by the Githabul People in New South Wales (Trevor Close on behalf of the Githabul People v Minister for Lands [2007] FCA 1847). This was a consent determination to which the State of New South Wales was a party. The State of Queensland indicated at the time that it was not prepared to recognise native title rights and interests in Queensland as claimed in 2007 by the Githabul People. · On 27 August 2007 the Director of the Indigenous Services Unit in Queensland wrote to the applicant indicating that if the applicant brought an application seeking limited native title rights over the summit of Mt Lindesay, and there were no indigenous respondents to the proceedings, he would recommend a consent determination. · On 2 April 2008 the applicant filed the native title determination application presently before the Court ("Githabul #2"). The application relates to a very small area of land (approximately 245 hectares) adjacent to the border between Queensland and New South Wales. The claim is for recognition of non-exclusive native title rights and interests. · During the first half of 2009 the applicant and the State of Queensland were engaged in mediation with a view to settlement of the proceedings. · On 3 July 2009, Dowsett J ordered that mediation cease, and that the applicant file and serve a statement of claim by 17 August 2009. · At a directions hearing on 24 February 2010 the matter was listed for trial for a four week period commencing 11 October 2010. · On 8 May 2010 a meeting of the Githabul People native title claim group was held at Cherrabah via Warwick, whereupon a substantial split in the claim group became evident. An affidavit sworn by Edward Besley on 26 May 2010 attested to: o the existence of a split in the claim group; o advice received by QSNTS to the effect that certain people and families would not be further participating in the proceedings; and o the fact that this could affect the capacity of QSNTS to fund the matter. · On 18 June 2010 the applicant's application for vacation of the hearing dates was refused by Greenwood J. Also on this date: o his Honour ordered that the second respondent, Kenneth Markwell, be joined to the proceedings; o the application for joinder as respondents by Myfanwy Locke and Ruth James was adjourned to 2 July 2010. · On 2 July 2010 at a directions hearing before Greenwood J, the applicant read an affidavit filed by Mr Kevin Smith, chief executive officer of QSNTS, sworn 1 July 2010, attesting that funding had been withdrawn from the applicant based on advice from counsel to the effect that the applicant faced evidentiary difficulties as a result of the split in the claim group and no longer had reasonable prospects of success. Mr Smith's affidavit also attested to the fact that funding had been instead allocated to the resolution of the dispute between the applicant and the second and third respondents. 7 At paras 27 and 28 of his affidavit Mr Rind attests to the difficulties in organising a meeting which the second respondent was able to attend. Further, at para 30 Mr Rind attests to difficulties in organising acceptable legal advice for Mr Markwell. 8 Mr Rind deposes that despite subsequent negotiations with Mr Markwell, on 21 July 2010 during a telephone conversation with him, Mr Markwell "did not confirm his willingness to participate in a further research process" in respect of further anthropological investigation. 9 (I note that Mr Rind's version of events involving Mr Markwell was challenged at the hearing in Court before me by Mr Markwell.) 10 Mr Rind attests that on 23 July 2010 he received written instructions from the applicant to make the application before the Court to discontinue the proceedings. 11 In an affidavit filed 3 August 2010 Mr Rind also deposed that a Native Title Application Steering Committee of the Githabul people was established at a meeting of the native title claim group on 8 May 2010; and that the Steering Committee consists of seven people whose role is to direct and assist the applicant in the matters relating to the native title proceedings. Mr Rind attests to a meeting of the Steering Committee being held on 2 August 2010, at which meeting he was present, and where the following resolution was unanimously passed: That the steering committee for the Githabul Peoples Native Title Determination application authorises and directs Trevor Close, the applicant to seek leave to discontinue the Githabul No 2 Native Title Claim.

Submissions of the parties 12 At the hearing before me the applicant and the State were both represented by Counsel. Mr Markwell appeared in person, and I allowed Ms Katharine Wiltshire to appear as a Mackenzie friend for the third respondents. 13 Both Ms Wiltshire and Mr Markwell made oral submissions at the hearing before me. In summary, Ms Wiltshire submitted that the third respondents wanted: · the dates of the trial (currently listed to commence in October 2010) vacated; · the appointment of an anthropologist to operate under the supervision of the Court; and · a respectful attitude demonstrated by the other parties to the proceedings, to the third respondents. 14 Mr Markwell submitted in summary that: · the trial dates should be vacated; · a re-authorisation meeting of the Githabul People should be held, as key people in the Githabul native title claim group (in particular the Williams family) did not support the applicant; · more than one anthropologist should be commissioned in order to ensure that all native title claim group interests were addressed. 15 Written submissions were filed in these proceedings on behalf of the applicant and the State of Queensland. These submissions are helpful and detailed, and have assisted me in making my decision. It is useful to summarise them before turning to consider the merits of the notice of motion before me.

Submissions of the applicant 16 In support of the notice of motion, the applicant submits in summary: · In 2007 it appears that offers were made by the Queensland government to settle with the Githabul People over the summit of Mt Lindesay. · On 2 August 2010 a meeting of the Githabul People's Native Title Application Steering Committee was held which confirmed and directed the applicant to proceed with the discontinuance application. · The O 22 r 2 of the Federal Court Rules provides: A party who represents any other person in the proceeding shall not discontinue his claim for relief under subrule (1) without the leave of the Court. · Where leave to discontinue is sought, the Court normally will allow an applicant to discontinue if he or she wants to, provided no injustice will be caused to the defendant: Covell Matthews & Partners v French Wools Ltd [1977] 1 WLR 876 at 879. · In the present case should the Court be satisfied that the applicant is authorised to bring the application seeking leave to discontinue, and that in all the circumstances there is no injustice to be suffered by the respondents, leave ought to be granted. · The recent meeting of the Githabul People's Native Title Application Steering Committee where the committee authorised and directed the applicant to seek leave to discontinue the Githabul #2 native title claim, supports the assertion that the applicant has authority. · There would be no injustice to any of the respondents by reason of the discontinuance of the proceedings because: o the claim was filed by the applicant on the invitation of the State on the basis that it would recommend settlement of the matter; o the applicant participated in the native title mediation in good faith, and until 26 May 2010 the applicant's representatives had held out some hope of settlement; o the State's letter of 27 August 2007 ought properly to have resulted in the State admitting the existence of native title in respect of some part of the claim area; o the whole of the claim area is within a national park. There are no particular third party interests other than those of the second and third respondents; o the extent of interests sought by the applicant are non-exclusive usury rights and interests and would not impact on any other person's use of the claim area; o the second and third respondents have filed material in support of their joinder application sufficient to satisfy the court that they have interests which may be affected. It is likely that they will bring applications over the same area; o the third respondents have indicated their willingness to support the discontinuance of the proceedings on the basis that it would lead to further research being done to resolve the question of the totality of the native title rights and interests in the Mt Lindesay claim area. · In the present case the effect of refusing leave to discontinue would be that the applicant would be unable to present any evidence in prosecution of his claim and presumably the application would be dismissed. A finding that native title does not exist would be an unjust result. · The applicant seeks leave to discontinue the proceedings on the basis that he is unable to presently proceed to hearing of the matter as a result of a split in the claim group. · It is open to the Court to order that the applicant be given leave to discontinue the application conditionally.

Submissions of the State of Queensland 17 In summary, the State submits as follows: · The State wants finality - significant costs were incurred in respect of Githabul #1 and further costs have been incurred in relation to Githabul #2. · The State is conscious of the potential for injustice if the matter is forced to proceed to trial in October, in particular for the second and third respondents. A balance of competing interests is achieved by the grant of leave to discontinue, subject to a condition that no further application for a determination of native title in respect of the current claim area be made by the Githabul People, as that group is defined in the native title determination application, without the leave of the Court. · There are issues as to whether Mr Trevor Close, the applicant, is authorised to bring the notice of motion to discontinue the application. · If the Court is satisfied that the applicant did have authority to bring the notice of motion for discontinuance, leave should only be granted conditionally. · The State seeks no orders as to costs.

Is the applicant authorised to bring the notice of motion currently before the Court?

Actual authority of the native title claim group 18 I accept the submission by Mr McAvoy that, in the circumstances of this case, the Steering Committee had been specifically established by the claim group to direct the actions of the applicant, and to the extent that the Steering Committee had directed the applicant to discontinue the application on 2 August 2010 that direction was by the claim group itself. 19 I note also however that the actual notice of motion seeking leave to discontinue was filed on 27 July 2010, whereas the meeting of the Steering Committee authorising (as distinct from ratifying) such action did not take place until 2 August 2010. Notwithstanding this irregularity I am prepared to accept that the resolution of the Steering Committee was effective nunc pro tunc to authorise the notice of motion filed on 27 July 2010. I do so in circumstances where, during the course of the hearing before me, the State of Queensland did not oppose such an inference being drawn, and no position in respect of the effectiveness or otherwise of the resolution of the Steering Committee was adopted by either the second or third respondents. 20 According, I consider that the evidence before the Court demonstrates that specific authority has been conferred on the applicant by claim group members to seek the leave of the Court to discontinue the application.

Operation of section 251B and section 62A of the Native Title Act 21 Further, and in any event, I consider that the applicant has authority to seek the leave of the Court to discontinue the proceedings by reason of the combined effect of s 251B and s 62A of the Native Title Act 1993 (Cth) ("the Act"). 22 Section 251B of the Act describes the process whereby all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it. 23 So far as relevant in these proceedings, s 62A provides that: Power of applicants where application authorised by group In the case of: (a) a claimant application; or (b) … the applicant may deal with all matters arising under this Act in relation to the application. (emphasis added) 24 Although it does not appear that the question whether a named applicant in a native title determination application has authority to seek the leave of the Court to discontinue the proceedings has previously been the subject of specific consideration by this Court, Counsel for the State have been very helpful in directing my attention to a number of decisions where s 62A has been more broadly considered. 25 First, in circumstances where a representative body had sought to file a notice of change of solicitors and a notice of discontinuance on the instructions of a large majority of the native title claim group, Drummond J in Ankamuthi (2002) 121 FCR 68 refused to make the orders sought on the basis that only the named applicant had authority to take any step in the proceedings. At [7]-[10] his Honour observed: 7 The provisions of that Act are clear. Section 61 makes provision for, among other things, a person authorised by all members of the native title claim group to bring an application for determination of native title on behalf of the claim group. Such a proceeding is obviously a representative proceeding. By s 61(2), it is provided that where a person authorised by a claim group to bring an application of native title on behalf of the group makes such an application, that person is the applicant and none of the other members of the claim group is the applicant. 8 It is clear enough from that provision that it is only the named applicant who has control of the litigation instituted by the filing of the application for a determination of native title on behalf of the claim group. The other members of the group, so far as the Court is concerned and so long as the applicant remains the applicant in the proceedings, have no authority to take any step in the proceedings. That follows, by implication from s 61(2), from identifying the person who makes the application as the applicant and declaring that no other member of the claim group is the applicant. But if more were needed, it is to be found in s 62A, which explicitly states that to be the position. 9 It follows from this that the Land Council, notwithstanding the fact that it may have acted on the instructions of a large majority of Ankamuthi People on behalf of whom QG 6158 of 1998 was brought, had no lawful authority to file the notice of change of solicitors which it did on 14 March 2002. 10 It is plain that the Land Council took the action it did on 14 March last to arm it with authority to terminate QG 6158 of 1998 by putting itself on the record as the legal representatives for the applicants. But for the reasons given, just as the Land Council had no authority to file the notice of change of solicitors, nor did it have any authority from the five named applicants, who alone have control of the litigation, to file the notice of discontinuance. Moreover, the proceeding QG 6158 of 1998, being for the reasons I have explained a representative proceeding, could not be discontinued without the leave of the Court pursuant to O 22 r 2(2) the Federal Court Rules. No such leave was sought. (emphasis added) 26 Ankamuthi (2002) 121 FCR 68 was followed by Finn J in McKenzie [2006] FCA 891 where a notice of motion was filed by the applicants to a native title determination application to discontinue the proceedings. The authority of the applicants in that case to do so was not contested in the proceedings, and his Honour made orders granting leave to discontinue pursuant to O 22 r 2(2) of the Federal Court Rules. 27 Similarly in Fesl v State of Queensland [2005] FCA 120 Spender J gave leave to the applicant to discontinue the proceeding, although in circumstances where the applicant's authority to bring the claim in the first place and to continue as the applicant was challenged. 28 Further, observations of French J (as his Honour then was) in Anderson v Western Australia (2003) 134 FCR 1 suggest that the dissent among named applicants in respect of a major amendment to the application is an issue which goes to the discretion of the Court in allowing the application (as distinct from the authority of the applicants to apply for an amendment to the application). 29 More recently, in Roe v Kimberley Land Council Aboriginal Corporation [2010] FCA 809 Gilmour J concurred with the position adopted by Drummond J in Ankamuthi (2002) 121 FCR 68, namely that s 62A of the Act confers standing exclusively upon the applicant in respect of dealing with all matters arising under the Act in relation to the application. In particular, at [39] his Honour adopted the view that the effect of s 62A is that, having regard to the purposes of the Act, no-one else is so empowered, whether or not they are a member of the relevant claim group. 30 Counsel for the State have also helpfully directed my attention to further observations of French J in Anderson (2003) 134 FCR 1 where his Honour said at [48]: Where it is a major amendment that is proposed the dissent of some of the applicants to the proposed amendment is a powerful discretionary factor against allowing it. In such a case whether the bar be legal or discretionary the proper remedy for the majority applicants is to go back to the native title claim group and obtain a decision that the group of applicants, in so far as it includes the dissentients, is no longer authorised by the claim group to deal with matters arising in relation to the application, and an authority for members of the native title claim group to apply to the court under s 66B. 31 However in my view these observations of his Honour do not cast doubt on the authority of the applicant in these proceedings to file a notice of motion seeking discontinuance of the proceedings because: · his Honour's comments were clearly directed to discretionary factors of the Court, rather than to the existence of authority in the applicants in that case to make application to the Court; and · in Anderson (2003) 134 FCR 1 a key issue was that there was dissent among the named applicants to the native title determination application. It was for this reason that his Honour considered it appropriate that the applicants revert to the claim group in the terms described. Had the named applicants been unanimous in respect of their application to amend the application in Anderson (2003) 134 FCR 1, it does not follow that his Honour would have made the comments in [48] of the judgment to which my attention has been directed. 32 In my view, and consistently with these authorities, it is appropriate to conclude that an applicant's authority to deal with all matters arising under that Act in relation to the application does extend to applying for leave to discontinue it. The phrase "all matters arising under this Act in relation to the application" in s 62A is, in my view, unambiguous, and should not read narrowly. "All matters" means, in my view, all matters, including discontinuance, and the words "in relation to" have been held to be extremely wide although their meaning will be determined by the context (Australian Securities and Investments Commission v Narain (2008) 169 FCR 211 at [68]-[69]). Only the applicant in this case has authority to take steps in the proceedings to seek the leave of the Court to discontinue the native title determination application. The applicant is not obliged to seek the approval of the claim group to do so. 33 It follows that, even were I not satisfied that Mr Close had authority from the Steering Committee of the native title claim group to file the notice of motion seeking the leave of the Court to discontinue the proceedings, I consider he would have such authority conferred upon him by the operation of s 251B and s 62A of the Act.

Principles relevant to granting leave to discontinue proceedings 34 On the basis that the applicant had authority to seek the leave of the Court to discontinue the proceedings, it is common ground among the parties that the applicant ought be given leave to discontinue the proceedings. However as I observed at the hearing, whether leave ought be granted in these proceedings pursuant to O 22 r 2(2) of the Federal Court Rules is at the unfettered discretion of the judge. 35 The traditional approach to an application seeking the leave of the Court to discontinue proceedings was summarised by Graham J in Covell Matthews & Partners [1977] 1 WLR 876 at 879 as follows: The principles to be culled from these cases are, in my judgment, that the court will, normally, at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave, if it can without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved. 36 In this case: · The applicant has received legal advice that the native title determination application before the Court no longer has reasonable prospects of success, in part arising from a serious schism which has developed within members of the claim group itself and the resultant evidentiary difficulties which will arise (for example, in relation to producing witnesses to support the claim). · The second and third respondents have now been joined to the proceedings, indicating the existence of other possible native title interests in the land the subject of the application. · The State is not prepared to be a party to a consent determination in the current environment. · The applicant wishes to continue mediation with the respondents, and commission further expert anthropological research specifically dealing with the issue of indigenous interests in the area. 37 I note that the four-week trial of the native title determination application is currently listed to commence in two months. I note also that this is the second application brought by the identified native title claim group in respect of the relevant land, and that, notwithstanding any order of discontinuance, it is very possible that a third native title determination application will be filed in future in respect of the Mt Lindesay area by this claim group. 38 In my view this is an unsatisfactory state of affairs. I sympathise with the submission of Mr Flanagan SC on behalf of the State that the State wants finality of claims such as this. An order for discontinuance in these proceedings is not likely to produce such finality. Rather, to coin a cliché, in respect to the identification of native title rights it appears to be back to the drawing board in respect of this portion of land on Mt Lindesay. 39 A further issue which causes me dissatisfaction is the somewhat late appearance on the procedural scene of the second and third respondents, whose applications to join the proceedings were filed only in 2010 notwithstanding the fact that the existence of native title (or otherwise) in the relevant land has been a live issue since at least 5 September 1995 when the original application for a determination of native title in New South Wales and Queensland was lodged with the National Native Title Tribunal by Mr Close on behalf of the Githabul People. I understand also, however, that the existence of possible other native title interests has been known to the Githabul People claim group for some time. In any event, it was clear to me at the hearing this week that neither the second nor third respondents would be ready for trial in October 2010, nor has the extent of their interests in the claim area (if any) been identified. 40 If the native title determination application in its current form has no prospects of success, as conceded by the applicant, one obvious question to arise is why the application should not simply be dismissed rather than leave given to discontinue. However in light of: · the lack of opposition to an order for discontinuance by any of the respondents; · the fact that the State - the respondent potentially most prejudiced by discontinuance of the proceedings - has not claimed that discontinuance would cause it an injustice and has not claimed costs arising from discontinuance; · the fact that the State has acknowledged that dismissal of the claim would cause injustice to the applicant; · the fact that the applicant has informed the Court of proposals to continue mediation as well as commission further anthropological research to investigate the claims of the second and third respondents; · the fact that a dismissal of the claim would lead to a res judicata and preclude any further claim, however meritorious, by the current claim group; and · the general principle that a party ought not be obliged to conduct litigation against its will; I am prepared to grant leave to discontinue, on the conditions proposed by the State and to which Mr McAvoy on behalf of the applicant agreed. That the Court is empowered to impose conditions on the grant of leave to discontinue is clear from the terms of O 22 r 7 of the Federal Court Rules, which provides that a discontinuance under O 22 shall not, subject to the terms of any leave to discontinue, be a defence to a proceeding for the same, or substantially the same, cause of action. In summary, the orders agreed by the State and the applicant require: · that any further native title determination application be filed in respect of the relevant area only with the leave of the Court; and · in respect of any further native title determination application, the Court be satisfied that, inter alia, expert anthropological evidence be obtained specifically dealing with all indigenous interests in the relevant area, and that QSNTS offer appropriate assistance to the second and third respondents. 41 In my view such conditions are appropriate in light of: · the proximity in time of the notice of motion seeking leave to discontinue to the listed dates of the trial; · the desirability of ensuring that any future native title determination application is supported by expert anthropological evidence addressing all relevant indigenous interests; and · the desirability of ensuring that the second and third respondents are offered appropriate legal assistance in respect of their claims. 42 In conclusion I note that I am not prepared to require an expert anthropological report to be completed by nominated date, as submitted by Ms Wiltshire. The onus remains on the applicant and its representative body, in conjunction with the second and third respondents, to ensure that research is undertaken in order for the appropriate native title claim groups to make application for native title. It is not the role of this Court in these circumstances to enter into a supervisory role with respect to such research, as submitted by Ms Wiltshire. 43 Further I am not prepared to order that a separate anthropologist be appointed to assist Mr Markwell. I note that, at this stage, Mr Markwell is joined to these proceedings in his own private capacity, and not in a representative capacity. In any event, as I explained to the second respondent at the hearing, an important function of the expert anthropological report is to provide expert, independent assistance to the Court. It is not appropriate for an expert anthropologist to be "assigned" to Mr Markwell or any interests he may at any stage represent. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Native Title Act 1993(Cth)ss 62A, 251B

REASONS FOR JUDGMENT 1 On 27 July 2010 the applicant in these proceedings filed a notice of motion seeking the following orders: 1. That the Applicant in the Githabul People #2 Native Title Determination Application (QUD 66/2008) be given leave to discontinue the Native Title Determination Application. 2. Such further or other orders as the court considers fit. 2 Because of the applicant's representative position with respect to a native title claim group, leave of the court is required in order to discontinue a native title proceeding: O 22 r 2(2) of the Federal Court Rules, Ankamuthi People v State of Queensland (2002) 121 FCR 68 and McKenzie v State of South Australia [2006] FCA 891. 3 Interestingly, it became clear at the hearing earlier this week that, in principle, the State of Queensland does not dispute that the applicant ought to be given leave to discontinue the proceedings. Further, I understand from submissions made by Mr Markwell and Ms Wiltshire at the hearing that the second and third respondents too consider that the proceedings should be discontinued. 4 The only issues in contention are: · whether the applicant is authorised to bring a notice of motion seeking the leave of the Court to discontinue; and · if the Court is minded to give leave - the terms upon which leave to discontinue should be given. 5 An affidavit in support of the notice of motion was filed by Mr Shahzad Rind, the Principal Legal Officer in the employ of Queensland South Native Title Services Ltd (QSNTS) with carriage of the proceedings. The background to the notice of motion is summarised in Mr Rind's affidavit. In my view it is useful to outline the background to the notice of motion currently before the Court, as well as the contentions of the parties, before turning to consideration of the orders sought.

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