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[2010] FCA 1113
Federal Court of Australia
2010-10-14
Ms J, Siopis J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 8 June 2010, Mr Albert Corunna, Mr Richard Wilkes, Ms Bella Bropho, Mr Victor Warrell and Mr Greg Garlett, jointly, as the applicant, filed in this Court, a native title determination application WAD 152 of 2010. The persons comprising the applicant claimed that in bringing the application they acted on behalf of the Swan River People. The area covered by the application includes a large portion of the Perth metropolitan area and the waters adjacent thereto. 2 The application identifies the native title claim group on whose behalf the application is brought, as comprising the current descendants of the following ancestors: Joanna Wilak; Cecilia Munderan, Alice Birigian, Netler (Tommy Nettle), husband of Alice Birigian, and Fanny Yurleen Bennell. 3 Mr Trevor Lewis Walley says he is a descendant of Ms Fanny Yurleen Bennell and is, thus, a member of the native title claim group identified in the application. However, Mr Walley says that he, and a number of other members of the claim group, did not authorise the persons comprising the applicant to bring native title determination application WAD 152 of 2010. 4 Mr Walley has brought an application by way of a notice of motion making two claims for relief. First, Mr Walley seeks an order under s 84D(1) of the Native Title Act 1993 (Cth) (the Act) that those persons comprising the applicant produce evidence that they were authorised, within the meaning of the Act, to make native title determination application WAD 152 of 2010. Secondly, Mr Walley claims that the native title determination application be dismissed on the ground that it does not comply with s 61 of the Act, because the persons who made the application were not lawfully authorised to make the application. 5 I made orders that Mr Walley's application for relief under s 84D(1) of the Act be considered as a separate and preliminary issue. The persons who comprise the applicant on the Swan River People native title determination application, opposed Mr Walley's application for this relief. I shall refer to them as the respondents to the motion. 6 Mr Walley's notice of motion was filed on 17 June 2010 and was supported by affidavits from Mr Walley, Ms Marlene Warrell, Ms Vera Rose Warrell, and Mr Shane Daniel Garlett. These affidavits were affirmed on either 16 June or 17 June 2010. In his affidavit, Mr Walley deposed that his father was Mr Michael Garlett, who is a descendant of Ms Fanny Yurleen Bennell - one of the ancestors whose descendants defined the relevant native title claim group. Each of the other deponents also affirmed that he or she respectively was a descendant of one of the relevant ancestors. 7 On 25 June 2010, the Court made directions that by 2 July 2010, Mr Walley file and serve any further affidavits on which he intended to rely in support of his claim for an order under s 84(1) of the Act. The Court also directed that the respondents to the motion file and serve any affidavits on which they intended to rely by 6 August 2010. The notice of motion was listed for hearing on 7 September 2010. 8 On 2 July 2010, Mr Walley filed affidavits from seven deponents in support of the notice of motion, and also an expert report from Mr David Raftery. Each of the seven deponents said that he or she claimed native title rights in respect of the land covered by the native title determination application, but were not within the claim group as identified in the native title determination application. The seven deponents were: Ms Dorothy Getta, Mr Frederick Joseph Pickett, Ms Frances Emily Humphries (nee McIntosh), Ms Doreen Nelson, Mr Bruce Jetta, Mr Cedric Jacobs and Mr Ronald James Gidjup. 9 On 20 August 2010, each of the respondents to the motion made an affidavit in opposition to the notice of motion. They also filed affidavits from three other persons. The tenor of the affidavits filed by the respondents to the motion, was to challenge Mr Walley's claim to be the son of Mr Garlett and, thus, a descendant of Mrs Bennell, on the basis that they believed Mr Walley to be a member of the Walley family clan and, therefore, not a member of the identified claim group. 10 On 26 August 2010, Mr Walley filed an affidavit by Ms Jo-Anne Mobbs affirmed on 24 August 2010. This affidavit deposed to the fact that members of this applicant, were also members of the applicant of the native title determination application WAD 6006 of 2003, which by orders made by Wilcox J on 9 October 2003, had been combined with another native title determination application, known as "the Combined Metropolitan application". 11 On 27 August 2010, Mr Walley filed a further affidavit, sworn on 27 August 2010, in support of the notice of motion. The supplementary affidavit of Mr Walley responded to the affidavits filed on behalf of the respondents to the motion which challenged Mr Walley's claim that he was the son of Mr Garlett. 12 On 27 August 2010, Mr Walley filed a document headed, "Amended Notice of Motion" dated 27 August 2010, which purported to amend the notice of motion to include the names of two further applicants on the notice of motion, namely, Ms Marlene Warrell and Ms Vera Warrell. No leave had been sought by Mr Walley to file and serve the affidavits referred to in [10] and [11] above, nor to make the amendment referred to in [12] above. At the hearing, Mr Walley made an oral application to amend the notice of motion. 13 Mr Walley contended that there was a sufficient question raised whether the persons comprising the applicant were properly authorised to bring the native title application on behalf of the Swan River People, as to warrant the making of an order under s 84D(1) of the Act. He relied on the following grounds. First, said Mr Walley, the native title determination application was brought on behalf of a subgroup of the persons who would be claimants to native title rights over the area covered by the application. Secondly, it was said that persons comprising the applicant had not been lawfully authorised by members of the native title claim group on whose behalf the application was purportedly made. 14 Section 84D(1) and (2) of the Act provide as follows: (1) The Federal Court may make an order requiring: (a) a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or (b) a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so. (2) An order under subsection (1) may be made: (a) on the Federal Court's own motion; or (b) on the application of a party to the proceedings; or (c) on the application of a member of the native title claim group or compensation claim group in relation to the application. 15 The respondents to the motion opposed the relief sought by Mr Walley, primarily on the basis that he did not have the standing required under s 84D(2)(c) of the Act to seek the order. 16 In support of this contention, the respondents to the motion relied on the evidence of the deponents referred to in [9] above, challenging Mr Walley's evidence that he was the son of Mr Michael Garlett. The respondents to the motion contended that on the basis of this evidence, the Court should find that Mr Walley did not, therefore, qualify to obtain an order under s 84D(1) of the Act. 17 Further, counsel for the respondents to the motion, objected to the proposed Amendment to the Notice of Motion to expand the names of the persons bringing the motion to include, Ms Marlene Warrell and Ms Vera Warrell. There was no dispute that Ms Marlene Warrell and Ms Vera Warrell were members of the native title claim group identified in the application. Counsel for the respondents to the motion contended that the amendment would be unfair to the respondents to the motion who had come to Court to argue that Mr Walley lacked the standing to seek the order sought under s 84D(1) of the Act and now the "goal posts were being moved". 18 I would add that counsel for the respondents to the motion, also objected to the reading of the affidavit of Mr Walley sworn on 27 August 2010, and the affidavit of Ms Mobbs, on the basis that no direction had been made by the Court that entitled Mr Walley to file these affidavits. Counsel for the respondents to the motion, also argued that if the Court ruled in favour of Mr Walley on either the application to amend the motion or the admission of the evidence objected to, then the Court should adjourn the proceeding to prevent prejudice to the respondents to the motion. However, there was no evidence of prejudice from the respondents to the motion, and counsel for the respondents to the motion was unable to identify any special prejudice. 19 I invited counsel to make submissions in relation to the merits of the application and said that I would reserve my decision both on the respondents' objections and application for an adjournment, and the merits of the application.
amendment of the notice of motion 20 I deal first with the application to amend the notice of motion to include Ms Marlene Warrell and Ms Vera Warrell as applicants for the relief claimed in the notice of motion. 21 This application gives rise to an issue which was not debated at the hearing of the application. The issue arises in this way. As mentioned, Mr Walley's claim for an order for the production of evidence of authorisation under s 84D(1) is a preliminary claim to the main relief which is sought in the notice of motion, namely, the summary dismissal of the application. The fact that the evidence is sought in the context of an existing application for summary dismissal of the native title claim for lack of authorisation, is obviously an important consideration in relation to the utility of the making of an order under s 84D(1). Thus, the fact of such an application being on foot is a relevant consideration in the making of such an order. 22 However, whereas an application for the making of an order under s 84D(1) may be brought by a member of the native title claim group, it appears that an application for the striking out of a claim for want of authorisation under s 84C of the Act can only be brought by a party to the proceeding. It appears that none of Mr Walley, Ms Marlene Warrell nor Ms Vera Warrell is a party to the native title determination application. On the face of it, therefore, it appears that the notice of motion may well be incompetent insofar as it seeks as the second order, the summary dismissal of the native title determination application in relation to s 84C, and that the amendment sought by Mr Walley to the notice of motion will not remedy the defect. The same difficulty appears to confront Mr Walley insofar as he seeks to rely upon s 31A of the Federal Court of Australia Act 1976 (Cth) and O 21 r 5 of the Federal Court Rules. The position is less clear insofar as Mr Walley would seek to rely upon the power of the Court to make orders under s 84D(4)(b) of the Act. 23 Because this issue was not debated at the hearing, I did consider whether I should adjourn the consideration of the merits of the application for an order under s 84D(1) and relist the motion to hear further submissions on this point. However, I have decided, in the interests of case management, to consider the merits of the argument on whether to make an order under s 84D(1), in any event. I have done so for the following reasons. 24 First, s 84D(2)(a) of the Act gives the Court power to make an order under s 84D(1) on its own motion and I propose to act on this basis. In my view, the jurisdiction of the Court to make an order under s 84D(1) has been properly invoked by the notice of motion filed by Mr Walley, such as would permit the Court, in this circumstance, to act on its own motion in the interests of case management considerations. It cannot be said that the claim made by Mr Walley to be the son of Mr Garlett is colourable. In fact, had it been necessary to decide the issue, I would have found that Mr Walley had established for the purposes of an interlocutory proceeding, the relevant standing. 25 Secondly, even if Mr Walley, Ms Marlene Warrell and Ms Vera Warrell do not have the standing to make an application for the summary termination of the native title determination application, there is a real likelihood that a party to the proceeding, namely the State of Western Australia, will bring such an application. This is because during the hearing, counsel for the State of Western Australia advised that she had instructions from her client to make an application seeking the same relief as that sought by Mr Walley, should Mr Walley's application prove to be incompetent. Accordingly, the making of an order under s 84D(1) is likely to be of some utility, at least, in the context of the application which the State has foreshadowed bringing. 26 Thirdly, for the reasons given below, I am satisfied, on the evidence, even leaving out of account the affidavits to which objection was taken, that there is a real question as to whether the native title determination application has been lawfully authorised.
order under s 84d(1) of the act 27 As mentioned, the first ground relied on by Mr Walley in support of his application for an order under s 84D(1), is that this native title determination application was made on behalf of a subgroup of persons with claims to native title over the area in question. Mr Walley relied upon the terms of the application itself, the evidence of Mr Raftery and the evidence referred to in [8] above, in support of this allegation. 28 First, Mr Walley contended that there was an acknowledgment by the respondents to the motion in Sch E of the native title determination application that the native title claim group described in the application, did not include all the persons who claim native title over the area covered by the application. 29 The relevant part of Sch E of the application reads as follows: The native title rights and interests claimed are the rights to the possession, occupation, use and enjoyment as against the whole world (subject to any native title rights and interests which may be shared with others who establish that they are native title holders) of the area, and in particular comprise. (Emphasis added.) 30 Mr Walley contended that the italicised words constituted the relevant acknowledgment. 31 Further, said Mr Walley, Mr Raftery concluded in his expert report that the five ancestors named in the native title determination application were born a significant time after 1829, and that there were a large number of Noongar People who are descended from the ancestors of the persons named, who are not included in the native title claim group described in the native title determination application. At [24] of his expert report, Mr Raftery concluded as follows: In my opinion, based on my research to date, the description of the native title claim group in the main application does not include all of those Aboriginal persons who claim native title rights and interests in the area covered by the main application. 32 Counsel for the respondents to the motion said that Sch E of the application had to be read liberally. Further, counsel for the respondents to the motion said that his clients had not filed evidence in rebuttal to the evidence of Mr Raftery because they did not have the funds to do so. There was, however, no evidence from any of the respondents to the motion to that effect; nor evidence providing any explanation as to why no rebutting evidence was filed, nor describing the nature of the evidence which they would have filed. In those circumstances, I place no weight on the submissions of counsel for the respondents to the motion. 33 In light of the evidence of Mr Raftery, even a liberal reading of Sch E does not avoid the conclusion that there is a real issue as to whether there are other persons who claim native title rights over the claim area, who are excluded from the native title claim group as defined. In this regard, there is evidence from seven persons referred to in [8] above, who depose to being excluded from the native title claim group, but who claim native title rights over the area. 34 This is sufficient to dispose of the preliminary issue which is before the Court, namely, whether the Court should order under s 84D(1) that the respondents to the motion, being the persons jointly comprising the applicant, should produce evidence of authorisation. 35 Mr Walley also relied upon a second ground of objection. Mr Walley contended that there was an issue as to authorisation arising from the manner of authorisation described in Sch R of the native title determination application. 36 Schedule R to the native title determination application is headed, "Certification or [sic] Authorisation" and states: The applicants are members of the native title claim group and are authorised to make the application and deal with matters arising in relation to it by all other persons in the native title claim group pursuant to a process of decision making that: a. under the traditional laws and customs of the persons to the native title claim group, must be complied with in relation to authorising things of that kind; and b. the persons in the native title claim group have also agreed to and adopted in relation to authorising the making of the application and dealing with matters in relation to doing things of that kind.
Particulars Richard Wilkes and Albert Corunna are authorised to speak for and act on behalf of the Darbarlyung Nyoongars of the Derbal Yerrigan and the Swan River Plains by receiving the oral permissoin [sic] of all the heads of the said family groups to do so. Bella Bropho is authorised to speak for and on behalf of the Swan Valley Nyungah Community. The decision for her to take on the role of family spokesperson from her father Robert Charles Bropho has been made as eldest daughter in traditional manner and confirmed at family meetings at Guildford Park. Victor Warrell is authorised to speak for and on behalf of the Warrell family by receiving the oral authorisation from the heads of families in that group. Gregory Lawrence Garlett has been authorised to speak for and act on behalf of the Garlett family group by being given written and in many cases oral authorisation from at least all the adult members of the Garlett family group members on behalf of themselves and, where applicable, their children, to act as the applicants in this claim and carry out all the duties of such applicants. Richard Wilkes, Albert Corunna, Bella Bropho, Victor Warrell and Gregory Lawrence Garlett on behalf of and with the authority of each of the groups referred to above have all authorised each other to be applicants in the combined application. 37 Schedule R to the application, in effect, states that one or more persons comprising the applicant had been authorised by his or her family group within the nominated native title claim group, and then each of the persons comprising the applicant authorised in this way, had then authorised each other to bring the native title determination application. 38 In my view, even aside from the evidence of Mr Walley and others that they did not authorise the persons comprising the applicant to bring the application on their behalf, the method of authorisation referred to in Sch R, gives rise to an issue as to whether there was authorisation within the meaning of the Act. 39 This is because the statement in Sch R does not appear to disclose that there had ever been an authorisation of the persons jointly comprising the applicant, by all the members of the native title claim group on whose behalf the application was purportedly made. Section 251B of the Act contemplates authorisation of the persons jointly comprising the applicant by all the persons in a native title claim group. 40 It follows, that, in this respect also, there is a real question as to whether the persons comprising the applicant in this native title determination application have been lawfully authorised to bring this native title determination application. (See, Noble v Mundraby [2005] FCAFC 212.) 41 It follows that I will order that the persons comprising the applicant should provide all the evidence on which they wish to rely to establish that the making of the native title determination application WAD 152 of 2010 has been authorised within the meaning of s 251B of the Act. 42 I will adjourn the application to amend the notice of motion to a date to be fixed. It is unnecessary to deal, at this time, with the objections to the evidence of Mr Walley and Ms Mobbs. Although, had it been necessary to decide the question, I would have admitted the affidavits into evidence, because of the absence of my demonstrated prejudice to the respondents to the motion. 43 I will also hear the parties in respect of further directions in relation to the claim for summary dismissal of the native title determination application, and the oral application for the amendment of the notice of motion. 44 For the sake of completeness, I observe that Mr Walley also referred to a contention that the bringing of this native title determination application was an abuse of process because the persons jointly comprising the applicant in this native title determination application are also among the persons jointly comprising the applicant of another native title determination application. However, this is a matter for another day. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
Corunna on behalf of the Swan River People
State of Western Australia