Combined Dulabed & Malanbarra/Yidinji Peoples v State of Queensland

Combined Dulabed & Malanbarra/Yidinji Peoples v State of Queensland - [2004] FCA 1097 - FCA 2004 case summary — Zoe

Parties

Applicant/Plaintiff:

Combined Dulabed & Malanbarra/Yidinji Peoples

Respondent/Defendant:

State of Queensland

Legislation Cited (3)

Federal Court Rules Native Title Act 1993(Cth)s 61(2), s

Administrative Decisions (Judicial Review) Act 1977(Cth)

Native Title Act 1993(Cth)

Cases Cited (9)

Submissions rejecting the connection of the people constituting the Malanbarra/Yidinji joint applicant to the claim area;
Submissions rejecting the authority of the people constituting the Malanbarra/Yidinji joint applicant to deal with the application; and
Submissions as to improper conduct on behalf of the North Queensland Land Council ("the Land Council"). The Connection of the Malanbarra/Yidinji Joint Applicant: 13 The dissatisfaction of Mr Morgan has stemmed primarily from his disagreement with the "Ginn Connection Report", an anthropological report released in 1999, which supports the persons named as constituting the joint applicant as having sufficient connection with the claimed area to represent the claim group. The submissions filed by Mr Morgan on 26 February 2004 reveal an ongoing dissatisfaction with the anthropological evidence. His submissions identify himself and his family as 'the proper Traditional owner family groups' and he submits that these groups are 'being excluded from taking [their] proper place in this claim application'. 14 Paragraph 20 ofMr Morgan's affidavit filed on 8 September 2003 reiterates his view that: 'Averil Ginn in researching and compiling this Connection Report did a good job of connecting the wrong people to the claim area, and leaving the proper Traditional Owner family Groups out on the fringes, or totally excluded.' Paragraph 12 of Mr Morgan's affidavit filed on 8 September 2003 states: 'I do not accept that Ms Mavis Royee and Mr Len Royee have the Traditional Affiliation or connection to the claim area as they have claimed in the Averil Ginn Connection Report. Therefore they have no Right or Authority to deal with matters relating to the claim application in Accordance with the LAWS and customs acknowledged and observed by the Traditional Owner Family Groups of the claim area.' 15 An inter-office memorandum of the Land Council dated 11 October 1999 is exhibited to the affidavit of Mr Morgan filed on 8 September 2003. That memorandum was from Averil Ginn, a consultant anthropologist to the Land Council, to the Principal Legal Adviser of the Land Council, and states that Joe Morgan (Mr Morgan's father) was amongst those who attended a meeting at Alley Park in Gordonvale at which the Ginn Connection Report was read. The memorandum states that 'the claimants said they were satisfied that the report was an accurate record of their customary legal entitlements to land in the Goldsborough Valley.' 16 In par 29 of Mr Morgan's affidavit filed on 8 September 2003 he admits that Averil Ginn talked to his father in preparing the Ginn Connection Report. Mr Morgan refers to the short list of named attendees at the meeting as evidence that Averil Ginn failed to adequately research information before compiling the Ginn Connection Report. However, it is clear from the reference in the memorandum to the meeting being 'well attended by the claimants including members of the Reference Group, Mavis Royee, Joe Morgan (only on the 9 October), Tom Ambyrum, Lennie Royee, Veronica Mays, Molly Cooktown and Frank Royee (only on the 10 October) and Connie Stewart' that the named attendees were not the only members of the claim group present. 17 Dr James Weiner an anthropologist with experience in native title matters was engaged by the Land Council to investigate complaints made by Mr Morgan. This was as a result of a meeting that took place on 13 June 2003 where it was agreed by Mr Morgan and Mr Martin Dore of the Land Council to arrange for further anthropological research to be undertaken on the matters raised by Mr Morgan, and that a peer review of that research would be conducted. Dr Nancy Williams, a senior anthropologist with native title experience undertook that peer review. The complaints of Mr Morgan and his concerns were identified. Mr Morgan was given a list to which he added and deleted some of those concerns. This was then provided in a brief to Dr James Weiner, and when his report was concluded, Dr Nancy Williams undertook a peer review. Dr Williams concluded at p 23 of her report that: '…it appears that all the claimants in the combined Dulabed Malanbarra/Yidinji native title application could demonstrate links through the principle of cognatic descent to apical ancestors of landed groups at the time of white settlement.' The Authority of the Malanbarra/Yidinji Joint Applicant: 18 Mr Morgan submitted that that the persons constituting the joint applicant were not properly appointed under the Native Title Act. Mr Morgan's submissions are in part that: 'the Land Council states the Applicants named on the Claim Application were authorised by members of the claimant group who attended a Federal Court Case Management Conference held in Cairns on 13-11-2000. That these claim group members who attended this conference also claimed they had authority to act as representatives of the claimant group, according to our Traditional Laws and Customs is beyond belief. And then the fact that they also authorise the Applicants at this conference is totally unbelievable.' 19 Paragraph 3 of Mr Morgan's affidavit filed on 21 November 2003 states: 'I will state for the record again that I do not accept that those named Malanbarra Yidinji Applicants Ms Mavis Royee and her son Mr Lenny Royee in the application have, or ever have had, authority to make the application and to deal with all matters arising in relation to the application, according to our traditional laws and customs, on my behalf.' 20 Paragraphs 18 and 19 of Mr Morgan's affidavit filed on 8 September 2003 state: '18. Our Senior Elder and Family Elder Mr Denny Morgan or myself as head of my fathers family were never invited to take part in this conference on the 13-11-2000 and so were not present to give our AUTHORISATION to the Malanbarra Yidinji Applicants.
To this very day the Malanbarra Yidinji Applicants still do not have our families Authorisation to make this application or to deal with matters arising in relation to the application.' 21 Paragraph 62 of the affidavit filed by Mr Morgan on 8 September 2003 states: '… I was present at the meeting at Atherton on 2-12-2000 but do not recollect signing any document, confirming and ratifying the Authorisation given to the Applicants at the case management conference. 22 The Form 1 Native Title Determination Application, Claimant Application states in relation to authorisation that: 'the authority provided for the purposes of the meeting of 13 November 2000 was subsequently confirmed and ratified at a meeting of the native title claimant group held at Atherton on 2 December 2000 at the Nyletta Community Centre, which confirmation and ratification was carried out in accordance with the native title claim group's tradition and custom.' 23 Mr Morgan submitted that the 2 December 2000 meeting did not validly ratify the 13 November 2000 meeting because only three days notice were given to the claim group and the meeting was advertised as a s 66B, meeting not a ratification meeting. 24 In any event, Mr Morgan's assertion is inconsistent with a handwritten document exhibited to the affidavit of Mr Martin Dore, Principal Legal Officer with the Land Council, filed 22 January 2004. Exhibit 'MEED1' to that affidavit is a record of an agreement made at a Malanbarra/Yidinji Meeting at Mr Warren Pitt's Office in Gordonvale on 27 January 2001, at which Mr Dore says he explained and gave advice concerning the draft deed. The document states 'we authorise Len Royee & Mavis Royee to sign the Agreement to amalgamate the Dulabed & Malanburra Yidinji claims as per the attached draft.' The document bears the signatures of M. Royee, Peter Ambyrum, the present applicant Michael Morgan, T. Ambyrum (snr) and S. Ambyrum. 25 Paragraph 21 of Mr Dore's affidavit states that the 'attached draft' was a Deed of Agreement that provided inter alia that 'the Applicants on the combined claim are to be the then current Applicants on the Dulabed claim and the then current Applicants on the Malanbarra Yidinji claim … The then Applicants on the Malanbarra Yidinji native title claim were Len Royee and Mavis Royee.' In fact, the Deed of Agreement dated 13 November 2000 exhibited to Mr Morgan's affidavit filed on 21 November 2003 states in cl 8(b) that '[t]he applicants in the combined claim shall be George Davis and Eddie Davis representing the Dulabed and two persons nominated by Malanbarra Yidinji claims'. It would appear that the persons who were named as the joint applicant in the Malanbarra/Yidinji claim automatically became part of the joint applicant in the joined claim, being the people already nominated by the Malanbarra/Yidinji for representation in the native title proceedings. 26 Mr Morgan seems particularly concerned with the perceived lack of representation of his family by the combining of the Malanbarra and Yidinji claims in 1997. However, the agreement dated 21 January 1997 specifically names the Morgan family as being party to that agreement and represented by the combined claim. Further, the document lists amongst the signatories Joseph Morgan. The Conduct of the Land Council: 27 Mr Morgan made various submissions concerning the conduct of the Land Council. His main concerns seem to be the alleged failure of the Land Council to deal with Mr Morgan's complaints in accordance with the Inter-Indigenous Issues Resolution Procedure; the alleged failure to consult the Working Group on issues affecting the progression of the claim; and the alleged failure of the Land Council to respond to Mr Morgan's concerns. He appears to assert that he has an entitlement to legal representation funded by the Land Council. 28 Paragraph 13 of Mr Morgan's affidavit filed on 21 November 2003 goes as far as suggesting that '[t]heir is a conspiracy going on and the Traditional Owners are being deliberately excluded from knowing exactly whats going on with the claims progress and excluded from getting involved in the progress of the claim.' Submissions of the Applicant: 29 The Land Council, acting on behalf of the persons who constitute the joint applicant in the native title claim, made submissions that estoppel by judgment based on the doctrines of res judicata and issue estoppel prevent Mr Morgan from succeeding on his notice of motion filed on 8 September 2003. 30 Res judicata was described by Dixon J (as he then was) in Blair v Curran (1939) 62 CLR 464 ("Blair") at 532 as having effect where 'the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence.' In order to rely on res judicata it is necessary to show that the earlier judgment relied on was a final judgment between the parties and that there exists identity of parties and of subject matter: see Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 at 909-10 per Lord Reid. In Jackson v Goldsmith (1950) 81 CLR 446 at 466 Fullagar J said that the doctrine is essentially a 'broad rule of public policy' based on the judicial maxims directed at finality: 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro eadem causa'. 31 The notices of motion relevant to the current proceedings are properly characterised as interlocutory applications in the native title proceedings. The judgment of Drummond J given on 8 November 2002 cannot be said to be final in the sense that a cause of action has merged into judgment. In dismissing a motion the Court refuses to make the orders sought, based on its underlying findings of fact. The doctrine of res judicata does not prevent the second notice of motion from being considered by the Court, in my opinion. 32 The question of issue estoppel is a different matter. There is a distinction between issue estoppel and res judicata, as Dixon J noted in Blair, at 532: 'The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.' and later: 'Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.' See also the judgment of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597. 33 Lindgren J in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at 736observed that although: '[r]eliance on the same cause of action in successive proceedings will ordinarily raise the same issues, so that if a litigant is defeated by res judicata, an issue estoppel will also be present … the converse is not necessarily true: an issue estoppel may defeat a litigant without res judicata doing so.' The Notices of Motion: 34 It is necessary to consider the judgment of Drummond J, the orders sought in the 18 October 2002 motion and the orders sought in the 8 September 2003 motion in some detail to determine if there are any proper orders, consistent with the principles of issue estoppel, which might be made on the motion now before the Court. 35 The 18 October 2002 notice of motion sought orders: '1. That Michael William Morgan be given leave to join these proceedings as a party, on behalf of the Goldsborough Valley Traditional Owner group. 2. That an Interlocutory Injunction be imposed on the Malanbarra Group, stopping them from carrying out further activities and programs on the claim area. 3. That further hearing in the matter of the Combined Dulabed, Malanbarra Yidinji Claim be adjourned until such time that all contentious issues as mentioned in this document are resolved. 4. That the descendants of named Apical Ancestors Paddy Bailey, Dolly Abbo, Alec Morgan and Jack Stewart bring forward their evidence which supports their claim, that these Apical Ancestors did in fact have Traditional Connection to the claim area. 5. That the Malanbarra name be annexed from the claim documents until the Malanbarra Group members bring forward their evidence proving they are in fact a clan group of the Yidinji and the Malanbarra Traditional country is the Goldsborough Valley. 6. That Mr Denny Morgan, Mr Michael Morgan, Mrs Veronica Royee (nee Mays) and Mr James Tabuai replace Ms Mavis Royee and her son Mr Len Royee as Applicants. 7. That Ms Mavis Royee and her son Mr Len Royee bring forward their evidence supporting their traditional claims to speak for country in the claim area, and their evidence supporting their claim of right to continue as Applicants to this claim. 8. That the Native Title Tribunal and Land Council provide the necessary assistance to the proper Traditional Owner Family Groups so each family is satisfied that their Native Title Rights and Interests are protected.' 36 It is convenient to deal with the orders sought in the 8 September 2003 notice of motion in groupings. Orders sought numbers 1, 2 and 3: 37 The first orders sought in the notice of motion filed 8 September 2003 are: '1. That Mr Michael Morgan be joined to these proceedings as a party, pursuant to section 84(5) of the Native Title Act, and within the meaning of section 84(3)(a)(ii) and (iii) of the Native Title Act. 2. That Mr Denny Morgan be joined to these proceedings as a party, pursuant to section 84(5) of the Native Title Act and within the meaning of section 84(3)(a)(ii) and (iii). 3. That the Tjapanbara Yidindji Aboriginal Corporation (Goldsborough Valley Group) be joined to these proceedings as a party pursuant to section 84(5) of the Native Title Act.' 38 The Federal Court has power to join parties pursuant to s 84(5) of the Act. That provision states: 'The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.' 39 The first order sought in the motion filed 8 September 2003 is substantially identical to the first order sought in the motion filed 18 October 2002. The second and third orders sought in the motion filed 8 September 2003 are novel. 40 As noted before, it is uncontested that both Mr Michael Morgan and Mr Denny Morgan are members of the claim group. 41 Drummond J in Kulkalgal People v State of Queensland [2003] FCA 163 ("Kulkalgal People") rejected an application by a member of a claim group to be made a party following that person's dissatisfaction with the way in which the persons named as the joint applicant were conducting the proceedings. His Honour said at pars 5, 6, 7 and 8: '5. Unfortunately, the scheme of the Act seems to me to be clear and designed to prevent an application of the kind before me on the motion succeeding. By s61(1) of the Act, it is provided that persons who may make a native title application are persons authorised by all the native title claim group to make the application. S61(2) provides that in the case of such a native title application, the named applicant or applicants are jointly "the applicant" and that "none of the other members of the native title claim group…is the applicant". S62(1)(a)(iv) requires, as I have already alluded to, that before a claim can be accepted for filing, it must be accompanied by an affidavit sworn by the applicant deposing to having the authority of all persons in the native title claim group to make the application. 6. It appears clear enough that a native title application can only be made by a person or persons with the authority of all persons in the claim group. The Court will therefore necessarily have before it, on the applicant's side, an applicant who represents all members of the claim group. By the statute in s62A, such a representative applicant is given full authority to "deal with all matters arising under [the Native Title Act ] in relation to the application". 7. If, as appears to have occurred here, one of the members of the claim group, after the regular institution of a native title claim, becomes dissatisfied with the way his or her interests are being represented by the applicant on the claim, then the only avenue provided for by the Act is that contained in s66B. The dissatisfied claim group member can apply to the Court to have the applicant in the proceedings replaced. But the section makes it clear that a member of a claim group who becomes dissatisfied, after the institution of the proceedings, with the way the applicant is conducting the proceedings can only make such an application if the dissatisfied person has the authority of all the members of the claim group to seek replacement of the named applicant. 8. The statutory scheme leaves no room for the principle referred to in cases such as John v Rees [1970] Ch 345 at 371 that a person represented in an action by a representative applicant under O6 r13 the Federal Court Rules can, if dissatisfied with the way the representative applicant is conducting the action, be joined as a respondent in the proceedings.' (Emphasis added) 42 Section 66B of the Act states: 'Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.' 43 Drummond J's construction of s 84(5) of the Act was doubted by Ryan J in Bidjara People #2 v State of Queensland [2003] FCA 324 ("Bidjara People"). After quoting from Drummond J's judgment Ryan J said at pars 7 and 8: '7. It is true that s61(1) requires an applicant to be authorised by all the members of the native title claim group and s66B enables an applicant to be replaced when he or she is no longer authorised by the claim group to make the application or to deal with the matters arising in relation to it. However, that section does not accommodate the situation which has arisen here, where the applicants retain the authorisation … of the majority of the claimant group, but there are one or more dissentient members of the group. In that event, it can hardly be contended that the claim should lapse. However, it would also lead to injustice if the dissentient members were thereafter denied a voice in the determination of the claim. They clearly remain persons whose interests may be affected by a determination in the proceedings within the meaning of s84(3)(ii) or s84(3)(iii). It would unnecessarily multiply proceedings to require those persons to institute their own claims. Accordingly, I consider, notwithstanding the views expressed by Drummond J in Kulkalgal People that such persons can be made parties pursuant to s84(5). 8. I am satisfied in the circumstances attending Ms Jo-ann Fraser's motion that it is appropriate for her to be made a party to the proceedings in Bidjara People #2 and I shall accordingly make an order to that effect.' 44 The difference as to power between the views of Drummond J and Ryan J is important. Notwithstanding the clear policy of the Act requiring that a native title determination application be made by '[a] person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided that the person or persons are also included in the native title claim group;' as authorised by s 61 of the Act, it is becoming a not uncommon occurrence in native title claims that some members of the native title claim group dispute that there was authorisation by all the persons who comprise the native title claim group, or as appears to be the case here and as was the case with the Kulkalgal People case before Drummond J and the Bidjara People case before Ryan J, that one or a group of the members of the claim group, after the institution of a native title claim which may be accepted as regular or may be disputed as being regular, becomes dissatisfied with the way the interests of that person or that group of persons are being represented by the applicant on the claim. 45 I prefer the view of Ryan J that there is, in such a circumstance, power under s 84(5) of the Act to make the dissentient group a party to the proceedings as a respondent. Whether the discretion that is conferred by s 84(5) of the Act is to be exercised in the circumstances of a particular case must depend on the circumstances of that case, including the history of it. 46 In par 11 of Drummond J's judgment given 8 November 2002 his Honour said that there was no satisfactory explanation for the delay in the bringing of the notice of motion against the background of Mr Morgan's participation in the claim. Mr Morgan is certainly in no better position in the current notice of motion before the Court. 47 Further Mr Morgan does not point to any real dissatisfaction with the conduct of the persons constituting the joint applicant other than his ongoing dissatisfaction with their connection to the claim area. Significantly, Drummond J made a finding of fact in par 7 of his judgment that: '[t]here is no evidence before me to support Mr Morgan's assertion that this particular subgroup of people have in truth no connection with the relevant part of the claim area. As I have said, the anthropological material is to the contrary effect.' 48 In the present case, Mr Morgan is seeking the same relief as he sought in the earlier notice of motion, and for the same reasons, which do not include any real dissatisfaction with the conduct of the persons who constitute the joint applicant, but essentially on his dissatisfaction with the anthropological evidence, which evidence is a conclusion contrary to what he asserts to be the correct position. Mr Morgan did not appeal the earlier decision of Drummond J, and it is difficult to avoid the conclusion that what he is seeking to do by the present notice of motion is to assert that the former decision declining to join him as a party was erroneous. I acknowledge that the basis of Drummond J's earlier decision was his Honour's view as to power, but I nonetheless think that Mr Morgan is estopped by the decision on the first notice of motion seeking to be joined as a party from re-agitating the correctness of that decision. Even if I be wrong in that conclusion I would not, for discretionary reasons (referred to later in these reasons), accede to the request by Mr Morgan to be joined as a party to these proceedings. 49 In my opinion the discretion to join parties given by s 84(5) of the Act should not be exercised to join either Mr Michael Morgan or Mr Denny Morgan. The position is now no better than it was when Drummond J declined to join Mr Morgan as part of the joint applicant in November 2002. A considerable time ago the matter looked to be approaching a consent determination. Mr Morgan has effectively halted that process, because he disagrees with the anthropological evidence. 50 An application brought by an Aboriginal corporation to be joined as a party to a native title proceeding was dismissed by Mansfield J in Adnyamathanha People No 1 v The State of South Australia [2003] FCA 1377. At par 34 his Honour said that the Aboriginal corporation's interest only existed to the extent to which it represented those people who had true native title claims. The goal of the corporation to assert valid native title interests did not mean that the corporation had an interest capable of allowing it to be joined pursuant to s 84(5) of the Act. His Honour said that: '[t]hey are the interests of the individual or groups of individual Aboriginal persons. Those individual or groups of individual persons are the persons who, if they wish to do so, may seek to become parties to the applications. The [Aboriginal corporation] does not acquire their interest by such persons becoming its members. Nor does it acquire their interests by such persons wishing it to protect or promote their interests.' 51 Mr Morgan has brought no evidence of the activities of the Tjapanbara Yidinji Aboriginal Corporation and the Court was not referred to the corporation's constitution. It appears that the corporation comprises people whom Mr Morgan says are of the Tjapanbara Yidinji clan. There is no evidence that this entity's "interests may be affected by a determination in the proceedings" beyond the interests of its individual members. Having regard to s 84(5) of the Act, no basis has been shown for joining Tjapanbara Yidinji Aboriginal Corporation as a party. Order sought number 4: '4. That these proceedings be referred to the National Native Title Tribunal for Mediation pursuant to section 86B(5) to enable parties to reach agreement on, or on facts relevant to, the matters set out in subsection 86A(1) of the Native Title Act." Subsection 86B(5) of the Act states: '(5) In addition to referring a proceeding to mediation under subsection (1), the Court may, at any time in a proceeding, refer the whole or a part of the proceeding to the NNTT for mediation if the Court considers that the parties will be able to reach agreement on, or on facts relevant to, any of the matters set out in subsection 86A(1) or (2). Subsection 86A(1) of the Act states: '(1) The purpose of mediation in a proceeding that does not involve a compensation application is to assist the parties to reach agreement on some or all of the following matters: (a) whether native title exists or existed in relation to the area of land or waters covered by the application; (b) if native title exists or existed in relation to the area of land or waters covered by the application: (i) who holds or held the native title; (ii) the nature, extent and manner of exercise of the native title rights and interests in relation to the area; (iii) the nature and extent of any other interests in relation to the area; (iv) the relationship between the rights and interests in subparagraphs (ii) and (iii) (taking into account the effects of this Act); … 52 The native title proceedings were in fact referred to the Tribunal by order of the Court made on 11 May 2004 at a directions hearing attended by the parties on the record. 53 It is unlikely that this order will satisfy Mr Morgan, as a non-party to the proceedings. However, mediation would not have been an appropriate order if Mr Morgan was a party to the proceedings, as s 86B(5) of the Act empowers the Court to direct mediation if the Court considers that the parties "will be able to reach agreement." Mr Morgan has made it abundantly clear that he is unable to accept even the validity of the combined claim and thus any order for mediation involving Mr Morgan would have the effect of creating an 'indefinite adjournment of the prosecution of the claim', as apprehended by Drummond J at par 8 of his reasons. Order sought number 5: '5. That the Ginn Report be declared inconclusive, incomplete and inconsistent, therefore invalid.' The Court is not able to make orders on this motion concerning the validity of Connection Reports compiled by experts. 54 According to the inter-office memorandum of Averil Ginn the Ginn Connection Report was accepted as by the attendees of the meeting, including Joe Morgan. Order sought number 6: '6. That the Native Title Claim Group now be declared invalid and not properly constituted.' 55 What precisely Mr Morgan means by the seeking of this order is not clear. It appears from the orders sought as numbers 7 and 8 that this really is a further attempt to challenge the connection report material. Orders sought numbers 7 and 8: '7. That the Malanbarra Yidinji Applicants in direct breach of section 61(1) of the Native Title Act be declared unlawful Applicants and stood down.
That all matters dealt with by the Malanbarra Yidinji Applicants relating to the claim between 5th June 2000 to the present time be declared unlawful, null and void.' 56 There is no power in the Court to order "applicants" to be stood down. There is a power in s 66B of the Act, set out above, to replace the applicant in certain situations. There is no evidence that the applicant is no longer authorised by the claim group or that the applicant has exceeded its authority other than Mr Morgan's assertion in par 20 of his affidavit filed on 21 November 2003 that: '… Lenny Royee agreed to combine QC94/9 [Yidinji] with QC96/18 [Malanbarra] without the consent of the whole claimant group. This agreement was not in the best interest of our claim group and as far as I can see Lenny Royee has exceeded his authority.' 57 The reference to s 61(1) of the Act is presumably to the alleged lack of authorisation given to the joint applicant on behalf of the native title claim group. The notice of motion filed 18 October 2002 sought orders flowing from the same allegation. Implicit in the dismissal of the notice of motion on 8 November 2002 by Drummond J is a rejection of the claim that the named persons constituting the Malanbarra/Yidinji joint applicant were not properly authorised pursuant to s 61(1) of the Act. There is an absence of evidence of a lack of proper authorisation provided by Mr Morgan, and Mr Dore swears in his affidavit that the persons who constitute the joint applicant in the combined claim were authorised in accordance with the Act. Order sought number 9: '9. That the Deed of Agreement signed by Malanbarra Yidinji Applicants and Dulabed Applicants to combine claim QC94/9 and claim QC95/3 be declared illegal and null and void.' 58 There is no evidence that the Deed of Agreement was tainted by fraud or duress. Mr Morgan has not provided any evidence for the making of such an order, nor identified any power in the Court to make such an order. It is not irrelevant to note that the authorisation to 'sign the Agreement to amalgamate the Dulabed and Malanbarra/Yidinji claims as per the attached draft' [MEED1] was signed on 27 January 2001 and the first signature to that authorisation is Mr Morgan. 59 This order was not sought in the notice of motion dismissed by Drummond J on 8 November 2002. Order sought number 10: '10. That all documents and agreements signed by the Malanbarra Yidinji Applicants be declared illegal, null and void.' 60 No evidentiary basis has been identified on which to make such an order, nor any identification of the source of the Court's power to make such an order. It appears that the grounds on which the order is sought is Mr Morgan's continued refusal to accept the anthropological evidence that the persons constituting the Malanbarra/Yidinji joint applicant are sufficiently connected to the claim area to be members of the applicant in the proceedings, a claim rejected by Drummond J. Order sought numbers 11 and 12: '11. That under the Provisions of the Native Title Act that those indigenous inhabitants of Australia with Traditional Affiliation and connection to an area have Native Title Rights and Interests that take precedence to those with Historical Association to that same area. 12. That Genealogical Reports are compulsory in a Connection Report, when the Connection Report's integrity is under question and the Connection Report contains dubious information.' Assuming that what is sought by order 11 is a declaration, it appears that what Mr Morgan is seeking is a statement, which in a broad brush and hypothetical way, supports his assertions as to connection over the connection evidence of his opponents. It is not an appropriate exercise of judicial power of the Commonwealth to make such a declaration. Similar considerations apply to the order sought which is numbered 12. Order sought number 13: 'That the claim application be declared invalid between the period of 13th June 1996 to the 16th March 2001.' 61 I am not aware of any power in the Court to make such a declaration, nor was any power identified, or any evidentiary basis for the making of the claim. Orders sought numbers 14, 15, 16, 17, 18, 19 and 20: '14. That a decision be made as to whether the North Queensland Land Council has followed correct procedures and process's as stipulated in their Policy Manual in addressing my concerns raised from October 2001 to now. 15. That a decision be made as to whether the North Queensland Land Council, has followed the correct procedures and process's as provided under the provisions of the Native Title Act in addressing my concerns raised from October 2001 to now. 16. That should the Land Council be determined to not be complying with their internal policy manual in addressing my concerns over the past three years then they are in fact liable in paying all my expenses incurred over that period in my attempts to get the Land Council to do the correct thing by the Goldsborough Traditional Owners and their claim application. 17. That should the Land Council be determined to not complying with the provisions under the Native Title Act in addressing my concerns over the past three years, they are held liable in paying all expenses incurred by me over that three year period and the Minister advised of this decision. 18. That due to the unreasonable conduct of the North Queensland Land Council in refusing to address my legitimate and valid concerns in the appropriate procedures, which has led to these proceedings and the previous proceedings held on 8-11-2002 that the North Qld Land Council pay my costs of legal councel - Representation in these proceedings and the orders seeked in clause 16 and 17 above, pursuant to section 85A(2) of the N.T.A." 19. That a Judicial Review be held into the Combined Dulabed Malanbarra Yidinji claim. 20. That should order 18 be granted then I be granted leave to consult with legal council on these proceedings and to submit the expense account to be paid by the land Council at a later date. 62 The Land Council is not a party to the native title proceedings in which this notice of motion is brought and, it would be inappropriate for the Court in these proceedings to make orders against a non-party. As far as I am aware, there has been no application seeking review of any decision of the Land Council under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It may be doubted whether such a decision would satisfy the requirement of a 'decision made under an enactment.' 63 Drummond J dealt with the funding question as sought by proposed order number 8 in the earlier notice of motion. At par 8 his Honour summarised the motivation of Mr Morgan as being to achieve 'an indefinite adjournment of the prosecution of the claim, and a direction by the Court that the NQLC fund him in his endeavours to make good his contention that these people in truth have no connection to the relevant part of the claim.' As the anthropological evidence had been accepted by his Honour, his Honour declined to make any order for funding. Mr Morgan's motivation has not changed in the context of the present motion. 64 It is not irrelevant to note that the Land Council wrote to Mr Morgan relevant to his complaints and his dealings with the Land Council. The letter is dated 10 July 2003 and states under various headings: 'RE: Request for assistance section 203BB NTA
We are in receipt of your letter of 9th July 2003 requesting assistance to lodge a separate claim.
In numerous previous correspondence you have asserted that the true traditional owners of the Goldsbough Valley include Eddie and George Davis [deceased], Veronica Royee, Joyce Mays and their families.
As those persons are currently included on the Combined Dulabed Malanburra Yidinji claim it would be contrary to NQLC policy to support the lodgement of an overlapping claim.
Further there would be no possibility of such a new claim being properly authorised by those people who you yourself admit are Traditional Owners who are already on the current claim.
The lodgement of a separate claim would be contrary to the currently available anthropological evidence.
In those circumstances it is not appropriate for the NQLC to provide assistance. Agreed process
Other reasons for declining assistance include the fact that there is an agreed process in place regarding this matter.
I note that at the meeting held on 13th June 2003 NQLC undertook that they would arrange for further anthropological research to be carried out to address your concerns, on the condition that you spoke with the other members of the working group who were not present at the meeting and subject to them agreeing.
I note that notwithstanding your failure to comply with that condition the NQLC has arranged for an anthropologist to carry out further research.
I further note that you have been contacted about this and have agreed a list of points that you want the anthropologist to answer.
The fact that there is now a process in place, which is a direct response to your complaints, provides further grounds for declining your request to assist lodgement of a separate claim. Breach of Undertaking
I note that at the meeting on 13th July you undertook not to write further letters of complaint or to otherwise raise these matters whilst the agreed process was implemented. NQLC is very disappointed that you have seen fit to breach that undertaking.' Order sought number 21: '21. That this Court acknowledge that these three separate native title Applications were lodged in the Goldsborough Valley from October 1994 and June 1996.' 65 The filing of the native title claims are part of the Court record as outlined in the history of the matter above. There is no utility in the Court making such a declaration. Orders sought numbers 22, 23 and 26: '22. That the Malanbarra Clan Application should have been dismissed as frivolous and vexatious by the Native Title Tribunal. 23. That as the current claim application and records on file at the land council and this court do not reflect the correct combination of claims, being three groups, that the Tjapanbara Yidinji who were members of the original claim QC94/9 be now recognised and acknowledged as a party on the claim application. ... 26. That the Malanbarra name be annexed from the Application." 66 Mr Morgan has made assertions, but he has not produced any evidence that the Malanbarra Clan application had been demonstrated to the Native Title Tribunal to be frivolous or vexatious, and that the Native Title Tribunal should have excised 'the Malanbarra name … from the Application.' Orders sought numbers 24 and 25: '24. That the Malanbarra Yidinji Applicants bring forward their evidence supporting their Traditional Affiliation to the claim area and their Right and Authority to deal with matters arising in relation to the Application, according to our Traditional Laws and Customs. 25. That the Malanbarra Yidinji Applicants bring forward their evidence that proves they have the Right and Authority to deal with matters relating to the claim, and that their Authority is superior to that of Senior Elder Denny Morgan and myself Michael Morgan." 67 Each of these proposed orders is substantially similar to proposed order number 7 in the earlier notice of motion. The evidence does not support the contention that the Malanbarra/Yidinji Peoples have no connection to the claim area. Drummond J found at par 7 that the "anthropological material is to the contrary effect." In effect what Mr Morgan is seeking is that the persons named as constituting the joint applicant prove to him their connection, a connection that is already addressed by a Connection Report, which evidence was considered by the Court on the earlier notice of motion. Order sought number 27: '27. That the Malanbarra Yidinji Applicants explain their reasons and intentions behind the fact that the Malanbarra clan Application overlapped QC94/9 but excluded the area of QC95/3.' 68 This order is futile. The reasons for the combination agreement are not relevant to the validity of a native title determination sought in the present case, and amount to a claim by Mr Morgan that he is entitled to interrogate the persons constituting the Malanbarra/Yidinji Peoples joint applicant. No basis for that right is identified by Mr Morgan. Orders sought numbers 28, 29, 30 and 31: "28. That as a Traditional Owner in the Claim area, acknowledged as a Traditional Owner by the Applicants and the claim group and the Land Council that I am also entitled to have access to all documents relating to the claim application including the Dr Ros Kidd Report, PBC structure and formation and constitution. 29. That as a Traditional Owner in the Land Council's invitational area, and this Land Council representing our Native Title Application I am entitled to have access to this land councils resources, including use of office equipment. 30. That the North Queensland Land Council address my concerns complaints, issues and requests in the correct procedure by referring them to the Inter Indigenous Issues Resolution Procedure following due process as provided in their Native Title Determinations and other functions Policy. 31. A Traditional Owner with valid concerns about the Application for Native Title over his Traditional Country has every right to raise those concerns directly with the Native Title Representative Body as an Individual Native Title Holder or as a family representative and has every right to have those concerns addressed by the Land Council.' 69 The seeking of these orders indicates the querulous and spoiling conduct of the applicant on the motion in seeking an indefinite adjournment of the prosecution of the claim. Mr Morgan wants the Court to make sweeping orders against the Land Council, a non-party to these proceedings. Further, it is not competent for the Court to make orders dictating the procedures and allocation of resources by the Land Council. 70 For the above reasons, I dismiss the notice of motion filed by Mr Morgan on 8 September 2003. Notice of Motion filed by the claim joint applicant: 71 The joint applicant sought orders: '1) That the notice of motion filed by Mr Michael Morgan on 8 September 2003 be dismissed 2) That Mr Michael Morgan do pay the applicants costs of and incidental to: i) the preparation of and lodgement of material in response to the said motion lodged 8th September ii) The preparation of written submissions in respect of the said notice of motion iii) Attendance upon the hearing of the said motion iv) The preparation of this motion and supporting documents 3) That any cost ordered by the Court be ordered, pursuant to Order 62 Rule 3 of the Federal Court Rules, to be payable forthwith notwithstanding that the Native Title proceedings are not concluded 4) That Mr Michael Morgan, and the Tjapanbarara Yidinji Aboriginal Corporation (Goldsbough Valley Group) be restrained from commencing any further applications in this matter without first satisfying any outstanding order for costs. 5) That Mr Michael Morgan, and the Tjapanbarara Yidinji Aboriginal Corporation (Goldsbough Valley Group) be restrained from commencing any further applications in this matter without first obtaining the leave of the Court.' 72 There was never a need for a separate motion dismissing Mr Morgan's notice of motion. 73 The Act deals with the position as to costs in s 85A: '(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.' Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.' 74 It is appropriate for the Court to make an order for costs in this case. Mr Morgan has in large measure sought to re-agitate issues that have already been dealt with by the Court. Mr Morgan is entitled to disagree with anthropological evidence, evidence that has been the subject of a satisfactory review commissioned by the Land Council in response to Mr Morgan's dissatisfaction. He is not entitled to seek to re-litigate issues decided adversely to him in earlier court proceedings, at least without exposure to costs. His conduct, in my judgment, has been unreasonable and he has unreasonably caused the respondents to the motion to incur the costs of his second notice of motion. He has frustrated and delayed the possibility of a consent determination of a claim that has a very protracted history, a result that would, in my opinion, benefit Mr Morgan as an acknowledged member of the claim group. 75 I order that Mr Morgan pay the applicant's costs of an incidental to the notice of motion, to be taxed if not agreed. 76 Further it is appropriate in this case to order that the costs be paid forthwith pursuant to O 62 r 3(3) of the Federal Court Rules. 77 The policy expressed by Emmett J in Brasington v Overton Investments Pty Ltd [2001] FCA 571 at par 13 that: 'since an interlocutory proceeding does not resolve the final issues between the parties, it would, in ordinary circumstances, be inappropriate that an unsuccessful party in an interlocutory proceeding be required to pay costs immediately, since that party might ultimately be entitled to an order for costs in the substantive proceeding' has no application in the present circumstances. Mr Morgan unsuccessfully sought to be made a party to these proceedings. His plain objective, both in the notice of motion declined by Drummond J, and this second notice of motion, was to torpedo the aspirations of the applicant for a determination of the native title claim. The making of an order that the costs of this second notice of motion be paid forthwith might tend to dissuade Mr Morgan from any further such attempts. 78 I am very conscious of the fact that Mr Morgan is acting for himself, and is not legally represented. As Kirby P (as he then was) noted in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536: '... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. …' 79 In this case, however, I think it right and just to make the orders as to costs indicated above. I decline to make any of the further orders that were sought by the claim applicant in its notice of motion filed 27 January 2004.

(1939) 62 CLR 464

(1950) 81 CLR 446

(1981) 147 CLR 589

(2004) 204 ALR 722

(1986) 6 NSWLR 534

[2003] FCA 324

[2003] FCA 1377

[2001] FCA 571

At a glance

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Judgment (4 paragraphs)

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Legislation Cited (3)

Cases Cited (9)