Dale v State of Western Australia

PRINCIPLES GOVERNING DISMISSAL 8 The application by the State is made pursuant to O 20 r 4 FCR which is in the following terms: 4 Stay or dismissal (proceedings commenced before 1 December 2005) (1) This rule applies to a proceeding commenced before 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding: (a) no reasonable cause of action is disclosed; or (b) the proceeding or claim is frivolous or vexatious; or (c) the proceeding or claim is an abuse of the process of the Court. (2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief. (3) The Court may receive evidence on the hearing of an application for an order under subrule (2). 9 Those terms are substantially similar to O 20 r 2 FCR which was repealed in the amendments to the Rules made in 2007. There is no reason to believe that the principles applicable to the current form of the Rule are any different from those applying to the Rule in its previous terms. No party has suggested otherwise. 10 The amendment to the Rules occurred on the introduction of the provisions for summary judgment contained in s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA). That section lowered the bar for summary dismissal but it is important to note in these proceedings that it is O 20 r 4 FCR which is the basis of the State's motion. That is the appropriate provision because the Wong-Goo-TT-OO claim was lodged with the Registrar of the National Native Title Tribunal (NNTT) on 10 July 1998. It was transferred to this Court on 30 September 1998. Such an application is a proceeding in the Federal Court (s 13(1) and s 61 NTA and Phillips v State of Western Australia [2000] FCA 1274 at [8]).

APPROPRIATE PRINCIPLES FOR DETERMINING WHETHER 'NO CAUSE OF ACTION' IS DISCLOSED 11 The principles are well established and warrant repetition only to reinforce the high level that is to be satisfied in a motion such as the present. The principles are conveniently collected in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J (as his Honour then was) and in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 128-130. From the principles there stated it is clear that no court proceeding should be summarily dismissed except in a very clear case. The General Steel test as explained by Barwick CJ at 129 is that: The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 12 If there is a real question of fact or law to be determined and the rights of the parties depend upon it, a proceeding should not be summarily dismissed. 13 It does not follow from this collection of principles that it is only in blindingly obvious cases that summary dismissal should be ordered. The fact that detailed argument may be necessary to highlight the basis of the contention should not be determinative of the issue. 14 The High Court reiterated over forty years later in Webster v Lampard (1993) 177 CLR 598 (Mason CJ, Deane and Dawson JJ) (at 602) that: The power to order summary judgment must be exercised with "exceptional caution" … and "should never be exercised unless it is clear that there is no real question to be tried". 15 The Court should have regard to the version of facts most favourable to the applicant but this does not mean that every fact pleaded has to be accepted. Were it otherwise, an issue estoppel argument could never be relied upon (and it has), to justify summary dismissal. 16 The summary judgment principles have been applied in the context of native title determinations on a number of occasions. In Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637 Wilcox J dismissed proceedings for lack of authorisation (at [44]-[48]). In Williams v Grant [2004] FCAFC 178 the Full Court (North, Dowsett and Lander JJ) (at [48]-[49] also on an authorisation basis); Bodney v Bropho (2004) 140 FCR 77 (at 88-89, at [50]-[51] where Stone J examined the Senate debate on the topic of summary judgment); Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967 (at [17]-[18] again for lack of authorisation); and Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185 (at [8] and, again, for lack of authorisation). Most recently in Quall v Northern Territory of Australia [2009] FCA 18 (Quall) the claim was struck out for reasons which will be examined below in more detail but are directly pertinent.

KEY ASPECTS OF DANIEL 17 It is essential to appreciate what has previously been resolved in Daniel in order to consider the State's issue estoppel argument. 18 First, it is necessary to identify the previous litigation. That can be done most conveniently by referring to what the Full Court said in Moses v Western Australia (2007) 160 FCR 148 (Moses)(at [7]-[9]: [7] The learned primary judge published reasons for several rulings prior to and during the trial: Daniel for Ngaluma People v Western Australia [1999] FCA 686; Daniel v Western Australia (1999) 94 FCR 537; Daniels v Western Australia (2000) 173 ALR 51; Daniels v Western Australia (2000) 178 ALR 542; Daniels v Western Australia [2000] FCA 1334; Daniels v Western Australia [2000] FCA 1356; Daniel v Western Australia (2001) 186 ALR 369. A further interlocutory decision in relation to certain proposed replacement applicants was given by French J on 13 September 2002: Daniel v Western Australia (2002) 194 ALR 278. [8] The substantive decision of the learned primary judge on the native title claims was delivered on 3 July 2003: Daniel v Western Australia [2003] FCA 666 (the July 2003 reasons). The July 2003 reasons included a determination of native title in draft form. The parties were given a limited opportunity to make further submissions on various issues arising from the July 2003 reasons and the draft determination. His Honour's subsequent rulings on those issues were delivered on 5 December 2003, 2 July 2004, 29 October 2004, 4 March 2005 and 21 March 2006. The nature of those further rulings is described below insofar as they are relevant to the issues on appeal. [9] Final orders were made on 2 May 2005. 19 Section 67(1) NTA requires the Court to make such orders as it considers appropriate to ensure that to the extent that native title determination applications cover the same area, they are dealt with in the same proceedings. Consequently, there was a consolidation of claims involving the area to be dealt with in Daniel. When the Wong-Goo-TT-OO claim was lodged, it included land that was already under claim by the Ngarluma and Yindjibarndi People and also the Yaburara Mardudhunera People. In 1999, the Wong-Goo-TT-OO claim was consolidated with the Ngarluma/Yindjibarndi claim to the extent that it overlapped with the Ngarluma/Yindjibarndi claim (Daniel (at [34] and Moses at [17]). Additionally, the Yaburara/Mardudhunera claim was also consolidated to the extent of the overlap. The Yaburara/Mardudhunera People were the second applicants in those proceedings with the Wong-Goo-TT-OO People being the third applicants. The State was the first respondent. 20 Nicholson J recorded a number of observations or conclusions, to use neutral expressions, in relation to the Wong-Goo-TT-OO claim. Those observations were expressed by the Full Court in Dale (at [14]-[33]). 21 The Full Court referred to his Honour's observations as findings. The debate as to whether 'findings' were made which arise in these proceedings was not before the Full Court. In those circumstances, it is unsurprising that the Full Court treated what his Honour had to say as being 'findings'. 22 The State contends that the following matters are findings and as a matter of logic apply wherever the Wong-Goo-TT-OO People might claim now or in the future: 1. The Wong-Goo-TT-OO People 'did not form a single cognatic kin group and had not made out their claim to be a traditional group' (Dale at [15]; Daniel at [387]; [389] and [390]). 2. '[Because] the appellants were not a traditional group - [the Wong-Goo-TT-OO People] could not establish continuity of existence as a group since sovereignty' (Dale at [18]; Daniel at [384]). 3. 'Since their claim to be a traditional group was not made out, [the Wong-Goo-TT-OO People] could not establish connection as a group nor that they held native title rights and interests as a group, even though those rights and interests 'appear in traditional form'' (Dale at [19]; Daniel at [506]). 4. '[T]he claims in relation to connection to the Thaluntha area were based on association with the Hicks family … Jack Hicks was Yindjibarndi (the traditional country of which did not include the Thaluntha area) … and … connection to the Thaluntha area from sovereignty to the present had not been maintained' (Dale at [20]; Daniel at [107]; [505]-[507]; and [1452]-[1453]. 5. '[the Wong-Goo-TT-OO People] were not differentiated from the rest of the Ngarluma People and Yindjibarndi People. The upshot was that [the Wong-Goo-TT-OO People] were not connected to their claim area by traditional laws and customs specific to them as a group' (Dale at [21]). 6. The Wong-Goo-TT-OO People generally, and Tim Douglas in particular, did not practise the traditional law and custom for the Roebourne area. In any event, the law practised by Tim Douglas (purportedly as traditional for the area) was not followed by the other members of the Wong-Goo-TT-OO People (Dale at [23] and [27]; Daniel at [314]; [315] and [507]). 7. It is possible that members of the Wong-Goo-TT-OO People hold native title as Ngarluma or Yindjibarndi People (Dale at [28]; Daniel at [508]-[509]). 8. All native title to the Burrup disappeared upon the demise of the group that formerly held title. Even if there had been a purported transfer of title from the former owners to the Wong-Goo-TT-OO People, such transfer was ineffective under the common law of Australia. Further, even if those two findings were wrong, the Wong-Goo-TT-OO People did not maintain connection from the date of the proposed transfer until the present time (Dale at [29]-[33]; Daniel at [373]; [382]-[383] and [503]-[505]). 9. His Honour dismissed the Wong-Goo-TT-OO application to the extent that it overlapped with the Ngarluma/Yindjibarndi claim, such dismissal being without prejudice to any rights of the members of the Wong-Goo-TT-OO claimant group but only as Ngarluma People or Yindjibarndi People to be native title holders (Order 24 of the Daniel Determination). 23 The Full Court made additional observations in Moses in relation to the Ngarluma and Yindjibarndi claims relevant to the Wong-Goo-TT-OO People. In Moses, the Full Court concluded that the primary judge had made the following findings in respect of the Wong-Goo-TT-OO People: 1. Lands traditionally associated with the Ngarluma People are situated in the northern lowland areas of the claim area and those of the Yindjibarndi People are situated on the tablelands, with an 'intermediate zone of mixed Ngarluma and Yindjibarndi' running more or less along the escarpment of the Chichester Ranges (Moses at [25]). 2. The Yaburara People were not part of the Ngarluma tribal group at sovereignty, so that the claim of the Ngarluma and Yindjibarndi Peoples to the Burrup failed because the claim of the Ngarluma and Yindjibarndi Peoples to the Burrup depended upon the membership of their claim group including certain members of the Yaburara People (Moses at [25]). 3. The name 'Wong-Goo-TT-OO' was adopted by the applicants for the Wong-Goo-TT-OO claim for the purpose of the claim. It is not the traditional name of any group of Aboriginal people (Moses at [30]). 4. The primary judge was not satisfied that before the constitution of the Wong-Goo-TT-OO its members had any common relation or purpose other than their claimed 'familial commonality', and was not prepared to infer that the actions of any one family were taken on behalf of the three families comprising the group (Moses at [47]). 5. The trial judge found that certain presently observable behaviours of the Wong-Goo-TT-OO had been established on the evidence and appeared in traditional form but connection was not made out because of the discontinuity in the Wong-Goo-TT-OO group (Moses at [48]).

ISSUE ESTOPPEL 24 The leading case remains Blair v Currun (1939) 62 CLR 464. Dixon J at (531-532) said of issue estoppel that: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be constrained or that rights be declared. (emphasis added) In other words, an issue estoppel is created in relation to any issue of fact or law that is legally indispensable to a prior decision involving the same parties. 25 In Carl Zeiss Stiftung v Rayner & Keeler Ltd [No.2] [1967] 1 AC 853, Lord Guest noted that the doctrine of issue estoppel had been accepted by Australian courts for a number of years and indicated that, for the doctrine to apply in a later set of proceedings, the requirements were: (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

Quall 26 Before considering the application of those principles in a number of cases, it is necessary to consider a recent similar case. In the recent decision of Quall, an order similar to that now sought was ordered by Reeves J. In Risk v Northern Territory of Australia [2006] FCA 404 (Risk), parts of native title determination applications relating to a particular area near Darwin described as being 'Area A' had been consolidated into one set of proceedings. The second native title applicant in those proceedings, Mr Quall (on behalf of the Danggalaba and Kulumbiringin People), alleged the existence of a particular Aboriginal society that held native title. However, Mansfield J held, (as did Nicholson J in this case) that a different society to the one alleged by Mr Quall was the relevant society which held native title at sovereignty. His Honour held that society had ceased to hold native title due to a 'substantial interruption' in the observance of traditional laws and customs in the Twentieth Century. Claims over Area A were therefore dismissed. 27 On the motion before Reeves J the Northern Territory applied to dismiss the balance of the Quall native title application. The balance of that application related to an area of land termed Area B. It was not the land which had been the subject of dismissal in Risk. 28 Mr Quall argued the existence of the same society as asserted in Risk (as the Wong-Goo-TT-OO are arguing in this proceeding) and alternatively, the existence of another different society that he had not asserted in Risk but he had asserted unsuccessfully on appeal in Risk (on behalf of Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) (2007) 240 ALR 75. 29 It was held that to the extent the applicants relied on the same society they had asserted in Risk in relation to Area A, they were estopped from doing so because the continued existence of that society had been determined adversely and therefore there was an issue estoppel. His Honour also held that to the extent that the applicants proposed to rely on a different society to that asserted in Risk, they were also estopped from doing so because the society 'issue' had been determined (adversely against them, in effect, in Risk) (Quall at [99]). 30 The Court took the view that it did not matter that a different area was involved (at [98] and [115]) nor that the alternative society argument had not been considered and determined in Risk (at [97]). It was held that it was an abuse of process to argue that a different alternative society existed in relation to Area B. At [115] his Honour said: As I have already observed above, I consider the findings made by Mansfield J in Risk are in clear terms and they deal directly with the various components of the definition of native title in s 233 of the NT Act, as explained by the High Court in Yorta Yorta. Those findings followed an exhaustive examination of a large body of evidence and they resulted in the final orders made by Mansfield J to the effect that native title does not exist for Larrakia lands in Area A (see [43] above). In my view, the findings and orders of Mansfield J are final, in the sense that they foreclose on any other Aboriginal society being able to establish that the laws and customs under its normative system gave rise to rights and interests in Larrakia lands in Area A. Indeed, they constitute a judgment in rem that no native title exists in those lands (see the cases set out in [63] above). While the decision in Risk does not have the same status in relation to the lands in Area B, I do not consider that detracts from the final effect of the findings on the ultimate issues upon which that decision is founded. Specifically, that the Larrakia peoples were the relevant Aboriginal society at sovereignty that possessed rights and interests in Larrakia lands. I consider this constitutes a final finding as to the relevant Aboriginal society that possessed rights and interests in those lands whether they fell within Area A or B. 31 Just as Risk had determined the critical society issue by finding that the relevant society did not exist, Daniel also (confirmed by the Full Court in Dale) reached the same conclusion in relation to Wong-Goo-TT-OO. 32 Nicholson J concluded in Daniel (at [370]-[371] and see also Moses 160 FCR 148 at [281]-[284] and [349]) that the only society holding native title over the Ngarluma native title area at sovereignty and at present was and is the Ngarluma society. That conclusion was reached following extensive evidence including 12 days of Aboriginal evidence and six days of expert anthropological evidence on behalf of the Wong-Goo-TT-OO alone.

Are the Same Parties Involved? 33 It is only a party (or his or her privy) to the first proceeding who may raise an estoppel in the second proceeding. Due to the reasoning which follows, it is unnecessary to consider further the question of whether or not there is any 'privy'. The estoppel may only be raised against a party who is a party to both. (Although, even if not parties, they are clearly 'privies' as that expression has been used. They had the key interest in that decision and a benefit from it. 'Privies' refer to people with such a community of interest (see Carl Zeiss Stiftung [1967] 1 AC 853)). 34 However, it does not follow from this that a plea of issue estoppel will be defeated merely by the addition of a new party or the removal of a previous party in the second proceeding. In Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 358-359, Fisher J, with whom Ryan J agreed, observed that issue estoppel could only be raised by or applied against parties who were in 'controversy' at the time when the issue was first determined, either in their favour or adversely to them. His Honour further observed: If a party was not involved in the litigation of that issue, either because it was not an issue between him and another party to the proceedings, or because he was not a party at all to the proceedings at the time of resolution, then he is not affected by nor can he raise an estoppel. 35 His Honour noted that if the contrary was the case, the public interest in not having the same matters relitigated could easily be bypassed. 36 His Honour continued, noting that the judgment of: …Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 464 et seq illustrates the point. The original proceedings in which the issue was determined where in a District Court and between Jackson and Goldsmith. Subsequently one White sued Jackson in the Supreme Court who in turn raised a third party claim against Goldsmith. Fullagar J held that a plea of issue estoppel was properly raised as between Jackson and Goldsmith in the Supreme Court proceedings. Admittedly it was not White who sought to raise the plea, as it is not the Commission here, which seeks to raise the plea against the Secretary. However, for the purpose of determining whether the parties are identical both the Commission in these proceedings and White in the proceedings before Fullagar J are to be ignored as in each instance neither was "involved in the controversy". 37 There is no logical or jurisprudential basis for precluding an issue estoppel in the manner formulated by Dixon J in Blair 62 CLR 464 simply because additional parties are involved in the second proceedings. The logic behind the doctrine of issue estoppel is to preclude any particular party being twice 'vexed' in the same matter, that there is a community interest in finality to litigation and, thirdly, that the 'scandal' of conflicting judgments should be avoided: Carl Zeiss [No.2] [1967] 1 AC 853 at 913 per Lord Reid, at 933-934 per Lord Guest, at 946-947 per Lord Upjohn and at 964 per Lord Wilberforce. 38 The short point in this regard is that the parties between whom the estoppel is raised (the applicants and the State) were parties in each of the matters. That is sufficient to constitute an identity of parties. The fact that the Wong-Goo-TT-OO claim had been consolidated with the Ngarluma/Yindjibarndi claim and the Yaburara and Mardudhunera claim to the extent of overlap with the Ngarluma/Yindjibarndi claim, does not detract from the commonality as to the identity of parties.

Was the Determination of the Status of Wong-Goo-TT-OO in Daniel Essential to the Determination of the Native Title Question? 39 After exhaustive analysis, Nicholson J in Daniel concluded that Wong-Goo-TT-OO was not and had not been a society in the relevant sense. To appreciate the significance of the conclusion (in order to determine whether Wong-Goo-TT-OO is issue estopped), it is necessary to closely consider what it was that Nicholson J necessarily had to determine in Daniel. In that regard, there can be no doubt that his Honour had to ascertain whether Wong-Goo-TT-OO was a society in order to ascertain whether it could hold native title. That is evident from the very nature of the concept of native title. 40 Section 223 NTA relevantly provides that 'native title' or 'native title rights and interests' means: … communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 41 The statutory definition in s 223(1) NTA is clearly the crucial question and the starting point. In De Rose v South Australia (No 2) (2005) 145 FCR 290 (at [38]), the Full Court said: It is hardly likely that the traditional laws and customs of Aboriginal peoples will themselves classify rights and interests in relation to land as "communal", "group" or "individual". The classification is a statutory construct, deriving from the language used in Mabo (No 2). If it is necessary for the purposes of proceedings under the NTA to distinguish between a claim to communal native title and a claim to group or individual native title rights and interests, the critical point appears to be that communal native title presupposes that the claim is made on behalf of a recognisable community of people, whose traditional laws and customs constitute the normative system under which rights and interests are created and acknowledged. That is, the traditional laws and customs are those of the very community which claims native title rights and interests. By contrast, group and individual native title rights and interests derive from a body of traditional laws and customs observed by a community, but are not necessarily claimed on behalf of the whole community. Indeed, they may not be claimed on behalf of any recognisable community at all, but on behalf of individuals who themselves have never constituted a cohesive, functioning community. 42 In Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ said after observing that native title has its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title, that native title is neither an institution of the common law nor a form of common law tenure but is recognised by the common law. 43 Their Honours asked (at [31]): …Is it a body of traditional law and custom as it existed at the time of sovereignty? Is it a body of law and custom as it exists today but which, in some way, is connected with a body of law and custom that existed at sovereignty? How, if at all, is account to be taken of the inescapable fact that since, and as a result of, European settlement, indigenous societies have seen very great change? 44 And continued to note (at [33]) that: ..."Native title" means certain rights and interests of indigenous peoples. Those rights and interests may be communal, group or individual rights and interests, but they must be "in relation to" land or waters. The rights and interests must have three characteristics. The first is that they are possessed under the traditional laws acknowledged and the traditional customs observed by the peoples concerned. That is, they must find their source in traditional law and custom, not in the common law. … 45 Further, the Court said (at [34]) that: …the rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have "a connection with" the land or waters. Again, the connection to be identified is one whose source is traditional law and custom, not the common law. 46 And, (at [35]) that the rights and interests in relation to land must be 'recognised' by the common law of Australia. 47 Native title rights and interests to which the NTA refers, the Court reinforced, are rights and interests finding their origin in pre-sovereignty law and custom, not rights or interests which are a creature of that Act. 48 Then, coming to the current issue, the Court said: 51 What is the position if, as is said to be the case here, the content of the laws and customs is passed on from individual to individual, despite the dispersal of the society which once acknowledged and observed them, and the descendants of those who used to acknowledge and observe these laws and customs take them up again? Are the laws and customs which those descendants acknowledge and observe "traditional laws" and "traditional customs" as those expressions are used in the Native Title Act, and are the rights and interests in land to which those laws and customs give rise possessed under traditional laws acknowledged and traditional customs observed? 52 Again, it is necessary to consider the several elements of the issues that thus arise. Has the society ceased to exist? Does not the survival of knowledge of the traditional ways suggest that it has not? Or is it shown that, although there is knowledge, there has been or is no observance or acknowledgment? These may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult. In the end, however, because laws and customs do not exist in a vacuum, because they are socially derivative and non-autonomous, if the society (the body of persons united in and by its observance and acknowledgment of a body of law and customs) ceases to acknowledge and observe them, the questions posed earlier must be answered, no. 53 When the society whose laws or customs existed at sovereignty ceases to exist, the rights and interests in land to which these laws and customs gave rise, cease to exist. If the content of the former laws and customs is later adopted by some new society, those laws and customs will then owe their new life to that other, later, society and they are the laws acknowledged by, and customs observed by, that later society, they are not laws and customs which can now properly be described as being the existing laws and customs of the earlier society. The rights and interests in land to which the re-adopted laws and customs give rise are rights and interests which are not rooted in pre-sovereignty traditional law and custom but in the laws and customs of the new society. 49 In Daniel, Nicholson J concluded, amongst other things, that Wong-Goo-TT-OO could not establish connection as a group nor that they held native title rights and interests as a group, even though those rights and interests 'appear in traditional form'. (Dale at [19]; Daniel at [506]). 50 His Honour also held that the Wong-Goo-TT-OO do not hold native title in their own right over any of the area of their claim that overlapped the area of the Ngarluma/Yindjibarndi claim (Dale at [5]; Moses at [44]-[48]). And, that the Wong-Goo-TT-OO claim should be dismissed to the extent that it overlapped with Ngarluma/Yindjibarndi claim (DanielDetermination). 51 Subject to the question of whether the conclusions reached by his Honour constituted 'findings' (but very relevant to its answer), those conclusions were indispensable to the decision. Wong-Goo-TT-OO had to establish that it was a collection of persons capable of holding native title. 52 In summary, it did not establish that it was a cognatic group and did not establish that it was a traditional group in any other sense: Dale (at [15] and [18]; Daniel (at [384]; [387]; [389]; [390]; and [506]). Without establishing that there had been a society which has had a continuous existence since sovereignty, it was impossible to satisfy the definition of native title in s 223(1) NTA. 53 In my view, there is no scope for contending that the issue determined in Daniel will be different in any future proceedings. 54 The primary thrust of the Wong-Goo-TT-OO submission, however, is that no finding or indeed 'solemn finding' was made in Daniel.

AN ADVERSE FINDING TO WONG-GOO-TT-OO WAS MADE IN DANIEL 55 The most important issue in the present debate is whether Nicholson J relevantly made a 'finding' in terms for which the State contends. If there was no ultimate finding, there can be no issue estoppel. Although issue estoppel can operate as to fact and to law, it must be an issue for the doctrine to arise. Simply to discard one aspect of a claim would not raise an issue for the purposes of issue estoppel. Frequently a party may fail or succeed on one aspect of a claim while having a different result on others. 56 On this issue, Wong-Goo-TT-OO relied heavily on Kuligowski v Metrobus (2004) 220 CLR 363 at [60] and particularly the passage reading: A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings. 57 However, this passage without amplification does not assist. 58 In Kuligowski, Metrobus wished to contend that Mr Kuligowski was issue estopped from advancing a common law negligence claim in respect of an ankle injury sustained at work and in respect of which a second review officer had, for workers' compensation purposes, recorded the following: It is also necessary for the applicant to prove incapacity for work and in this regard I am of the view that Mr Kuligowski has not satisfied the onus upon him on this point. 59 The ratio of the decision in Kuligowski appears before the heading 'Immaterial Matters' in which the passage on which Wong-Goo-TT-OO wish to rely is to be found. The ratio of the decision is at [45]-[46] in which the Court held that the second review officer had a different question to decide from the question which might confront the District Court on a common law claim. Notwithstanding that difficulties may be encountered in the common law claim in light of the conclusions reached by the second review officer, the matters which that officer had to decide were different from those which would arise on the common law claim. 60 The reasoning of the High Court makes it clear that the proper approach to determining what has been decided in a matter can only be assessed having regard to the pleaded and argued issues. Plucking a sentence out here or there does not answer all the questions. 61 The comments made by the Court on which Wong-Goo-TT-OO rely appear under the heading 'Immaterial Matters' as part of a collection of other issues which arose and on which, in the circumstances, it was unnecessary to decide. 62 The full paragraph in which the sentence on which Wong-Goo-TT-OO relies reads as follows (footnotes omitted): In general, disbelief in a witness's evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way: "[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden." A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings. 63 As the Court explained at [61], in finding whether or not something has been solemnly found against a party, the form of the first proceeding, particularly the issues joined or admitted on the pleadings will be important. In other words, as Dixon J observed in Blair v Curran 62 CLR 464 (at 532): [J]udicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the ground work of the decision itself, though not then directly the point at issue. 64 More importantly for present purposes, Dixon J went on to distinguish findings concerning only 'evidentiary facts' rather than the 'ultimate facts' which found the very title to rights in dispute. In Kuligowski, however, the High Court observed that that important issue was not the subject of the primary submissions of the parties and was not necessary to decide in the present case so was put to one side. 65 In Kuligowski, the High Court referred to the decision in the Privy Council which upheld the dissent of Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537. In Hoysted, Higgins J had referred to the use of the phrase 'actually litigated and determined' - in turn, an expression coined by the Supreme Court of the United States in Cromwell v County of Sac (1876) 94 US 351 at 353. Higgins J observed in Hoysted that the particular point (in relation to joint ownership for the purposes of land tax) was by virtue of the formal objections and from the nature of the judgment 'actually litigated and determined' in the former proceedings and that whether the judgment in its actual form was due to the Commissioner's consent or admission or to his neglect, he is bound by the finding of joint ownership which the judgment necessarily involves. 66 In Kuligowski, the High Court went on to say that in the proceedings under the Workers' Compensation and Rehabilitation Act 1981 (WA), no findings were made which operated in the manner alleged as issue estoppels nor was the structure of the legislation in the nature of the proceedings such that there could be said that the necessary findings must be treated as having been actually litigated and determined. 67 Unlike Kuligowski, in the present case it is central to the issue estoppel argument to determine whether or not Nicholson J made findings on the topic of whether the Wong-Goo-TT-OO had the ability to hold native title as a group. 68 A number of cases have considered the passage in the joint High Court judgment in Kuligowski where the Court says that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged (at [60]): Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322; DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16; Lancee v Willert [2008] WASCA 120; Wyatt v MR and RC Smith Pty Ltd [2008] WASCA 55; Squires Transport Pty Ltd v Turnor [2004] WASCA 245. 69 One of the decisions cited in Kuligowski was Egri v DRG Australia Ltd (1988) 19 NSWLR 600, a decision of the Court of Appeal of New South Wales in a Court constituted by Mahoney, McHugh and Clarke JJA. (McHugh JA was also a member of the Court in Kuligowski). In Egri, the Court of Appeal upheld a conclusion by the primary judge that there had been an issue estoppel by virtue of the primary judge having said 'I am not satisfied that the theory of the disc lesion has been established… I am not satisfied that the injury has resulted in disc lesion'. 70 The approach taken by the Court of Appeal as is evident from the judgment of McHugh JA was that unlike the case of Lombardo v Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159 (and I might say, unlike Kuligowski), the finding relied upon for an issue estoppel in Lombardo as to an infarction was not an indispensable step in making the ultimate findings. However, in the case of Egri, the finding that there was no disc lesion was fundamental in determining what was the nature of the injury and whether the worker was still incapacitated (at 605). 71 It was because of the fundamental nature of what was being decided as distinct from the language employed that an issue estoppel was created. Even in Blair v Curran 62 CLR 464, Dixon J (as he then was) observed at (at 531-532) that the essential task is to distinguish between those matters fundamental to the decision or necessarily involved in its legal justification or foundation from matters which are not in point of law the essential ground work of the conclusion. 72 Indeed, in Egri, it was argued that because there had been no positive finding as to a failure to establish on balance of probabilities the existence of a disc lesion that the conclusion reached was insufficient to create an estoppel. That submission was expressly rejected in Egri (at [601F], [604D], [608D]). Wong-Goo-TT-OO advance the same argument in this proceeding, that a negative conclusion such as not being satisfied, cannot constitute a finding. The argument should be rejected as it was in Egri. 73 The High Court in Kuligowski saysthat in relation to ultimate facts which form the very title to rights in dispute it would require more than non-satisfaction. I take this to be indicating that conclusions reached about ultimate facts as distinct from evidentiary facts must necessarily be findings. That does not necessarily conflict with the observation that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. As all the cases indicate, it is a matter of examining the real issues in dispute, the task for the Court, and the basis on which the Court arrived at its conclusion in order to assess whether a determination is, for the purposes of an issue estoppel, in the nature of an ultimate finding, however it may have been expressed. 74 One example of the cases in point is Wyatt v MR and RC Smith Pty Ltd in which Buss JA with whom Wheeler JA and Pullin JA agreed, said: 42 It is essential, in examining reasons for decision which are alleged to create an issue estoppel, to understand with precision what the judicial officer was required to determine. See Murphy v Abi-Saab (1995) 37 NSWLR 280, where Gleeson CJ (with whom Kirby P and Rolfe AJA agreed) said: The difficulty is to distinguish between decisions of fact or law fundamental or cardinal to the judgment and other decisions. One thing, however, is clear. Only a decision about a matter which it was necessary to decide can create an issue estoppel. It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide (288). … 46 In Kuligowski, the High Court noted that in some cases it may not be possible for a court or tribunal to reach a conclusion either way in relation to a specific issue [60], and cited the following passage from the speech of Lord Brandon of Oakbrook in Resa Shipping Co SA v Edmunds [1985] 1 WLR 948: [T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden (955). The High Court then said that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. Their Honours added: There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings [60]. 75 I do not consider that this question can be determined simply by referring to a few words in an extremely lengthy judgment. While the language used by Nicholson J in Daniel was quite accurately, with respect, expressing a view as to whether or not Wong-Goo-TT-OO had discharged its onus, it is a matter of analysing the issues which were before his Honour as a result of the statutory definition of native title. When this process is undertaken, there can be no doubt that positive findings of fact on the critical issue were made against Wong-Goo-TT-OO in Daniel. The Full Court similarly had no doubt on that issue. 76 Importantly the central reasoning behind the decision in Daniel was that Wong-Goo-TT-OO did not hold native title over any part of the Ngarluma/Yindjibarndi claim area because Wong-Goo-TT-OO was not a group capable of holding native title. Far from being peripheral in any sense, this was the first and fundamental issue that his Honour had to decide and it was decided clearly against Wong-Goo-TT-OO. 77 This fundamental finding also disposes of the Wong-Goo-TT-OO suggestion that different issues may arise in relation to the townsites compared with the balance of the claim area. There is no geographical element attached to the central determination in Daniel. The same contention was advanced in Quall and, in my respectful view, correctly rejected.

Was Daniel a 'Final Decision'? 78 I do not understand Wong-Goo-TT-OO to be contending that the decision in Daniel or the Daniel Determination were anything other than final decisions. Quite clearly (subject only to a right of appeal), they were final decisions that conclusively determined the existence or otherwise of native title within the area of the Wong-Goo-TT-OO claim that overlapped with the Ngarluma/Yindjibarndi claim. 79 Although a decision may be still be final notwithstanding that it can be subject to appeal, the Wong-Goo-TT-OO have already pursued and, indeed, exhausted all avenues of appeal in relation to Daniel and the Daniel Determination.

Are there Policy Considerations which Militate Against Issue Estoppel? 80 It is doubtful whether there is room for any discretionary factor. The threshold for establishing an issue estoppel is high. The requirements are exact and have been clearly prescribed. None of those requirements appears to invoke any overriding discretionary aspect. Nevertheless, the underlying doctrine as it has been explained in the cases behind the doctrine of issue estoppel can be seen to have relevance to the present case. The Wong-Goo-TT-OO assertion that the Wong-Goo-TT-OO People form a society that has existed continuously since sovereignty has been exhaustively and extensively ventilated in previous hearings. The duration of the Daniel hearing and appeal and the extensive analysis in the respective judgments would all have been wasted if the Wong-Goo-TT-OO were permitted to progress the present claim. There is a real interest in achieving finality of litigation. It would also be an undesirable conflict if a Judge hearing future proceedings reached a different conclusion than that reached by Nicholson J on the same point in relation to the 'society' issue. 81 Wong-Goo-TT-OO complains that the State is failing in its model litigant obligation by refusing to negotiate with Wong-Goo-TT-OO. This submission misconceives any statutory obligation under the NTA. There is certainly an obligation to negotiate in good faith for a period of six months in relation to future acts but there is no reason to believe that in circumstances where there is a proper foundation for a view that a claim has no basis, the State should continue to negotiate for resolution of it. That would clearly produce an impractical outcome (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615).

Is the fact that Wong-Goo-TT-OO's Claim has been Registered Relevant to Issue Estoppel? 82 Wong-Goo-TT-OO contend that the fact that the claim has been registered adds support to the Wong-Goo-TT-OO position giving rise to a presumption that the claimed rights and interests exist. This presumption, it is contended, adds to the burden on behalf of the State in establishing that no reasonable cause of action is disclosed. 83 In my view registration does not fortify the presumption that the asserted native title rights exist, at least for the purposes of this motion. Registration is an administrative act. It involves no real assessment of the actual merits of the claim. Registration itself may be conducted on the basis of an assumption that the facts asserted in the relevant native title application are true but it does not follow that in the context of an issue estoppel challenge the Court must operate on the same presumption. If it did, there would never be a successful challenge on the basis of issue estoppel. Further, there was such registration prior to the decisions in Daniel and Dale which judgement's plainly rebutted any presumption which may have previously existed. There is no longer any presumption.

ADDITIONAL EVIDENCE 84 Wong-Goo-TT-OO seek to read affidavit material in support of their contention that there is a proper foundation now supported by sound genealogical research to conclude that there is the requisite element of continuity as a group. The State, in particular, objects to reliance on that affidavit material. The objection is not based on the inadequacy of the material (indeed, the State contends that if the material were examined it would only support the State's contention that it is precisely the same claim being pursued without any evidentiary support). Rather the objection is on the basis that reliance on additional 'new' evidence which it is said might change the position is not the correct approach to the question of whether or not an issue has previously been determined and cannot now be pursued once again against the same party. 85 The State's submission on this topic is correct. It would defeat the purpose of the doctrine of issue estoppel if on any occasion on which it were raised, it were open to the party opposing the issue estoppel argument to contend that it would run its case differently this time such that the outcome would possibly be different from the earlier decision. As has been emphasised, the threshold test for an issue estoppel is high. But once that threshold is crossed, it is not open to the estoppel party to start again with a different case.

ALTERNATIVE ARGUMENT 86 The State has advanced the following alternative argument. Technically, none of the findings discussed above relate specifically to Karratha, Point Samson or Wickham because these towns were excluded from the original Ngarluma/Yindjibarndi claim. However, it is submitted that these findings apply equally to the three towns in substance because the towns are surrounded by the area to which the orders apply. It is not plausible, it is said, that different orders could be made in relation to any of the three towns. 87 The submission is supported by the fact that the holders of native title in the area surrounding the towns, the Ngarluma People, assert native title over each of the towns as well. Given two competing claims over the towns (as opposed to a single claim by two claim groups asserting overlapping rights, as was the case with Ngarluma and Yindjibarndi Peoples in relation to part of the Ngarluma/Yindjibarndi claim), it is implausible that any claim other than the Ngarluma claim to any of the three towns could succeed. 88 Having reached a conclusion on the basis of issue estoppel, it is unnecessary to rule on this argument. Were that the only argument, I would be substantially less inclined to allow it as a basis for dismissal of the claim, notwithstanding that it has a logical appeal. I would not be prepared to conclude that the present Wong-Goo-TT-OO claim should be dismissed as disclosing no cause of action on the basis that it is 'seriously implausible' that a claim could succeed in respect of the townsites despite having failed all around the townsites. It may be highly unlikely that such a claim could succeed because there is little doubt that the evidence in Daniel was relevant to the entirety of the area. Indeed, senior counsel for Wong-Goo-TT-OO suggests that the evidence advanced for Wong-Goo-TT-OO in relation to the townsites was substantially stronger than any other evidence in relation to connection to the townsites. Be that as it may, my view is that the only appropriate ground on this application for dismissal is the issue estoppel argument. 89 Barwick CJ adopted a number of expressions from earlier decisions encapsulating the extent to which the Court would have to be satisfied that a case should be dismissed for showing no reasonable cause of action. I do not consider that any of those expressions descends into the arena of implausibility whether it be at the high end of the implausibility scale or the low end. The degree of certainty that a court must have as to the absence of a reasonable cause of action is at a level above implausibility: see Australian Building Industries Pty Ltd v Stramit Corporation Limited & Anor [1997] FCA 1318, Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686 at [14] and Millet J in Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch 9) at 5. 90 Of course the new lower threshold introduced by legislation in s 31A FCA sets a different test. The very need for that legislative amendment fortifies the view that under the former Rules applicable to this motion, serious implausibility or serious improbability fall a little short of the mark.

DECLARATION IN RELATION TO DAMPIER 91 Wong-Goo-TT-OO contends that any declaration in relation to Dampier is unnecessary because no claim is pursued in relation to Dampier. The State contends that this was unclear from the history of the proceedings. A deal of the State's submissions has been devoted as to the reason why a claim in respect of Dampier, in particular, could never succeed. 92 I would agree with senior counsel for Wong-Goo-TT-OO in relation to this aspect of the matter. Senior counsel has made it very clear that there is no claim in respect of Dampier. The concession was made in open Court on the clear understanding that it would be a binding statement in respect of these proceedings. It is unnecessary in those circumstances for any declaration.

CONCLUSION 93 I do not underestimate the exceptional caution required to exercise the power to dismiss on a summary basis. Nor do I underestimate the demanding standards required of a dismissal on the basis of issue estoppel. However, that said, I have no doubt that Wong-Goo-TT-OO are estopped in the manner asserted by the State. It follows that the State's motion is to be allowed and Wong-Goo-TT-OO's substantive application must be dismissed. Pursuant to s 85A NTA there will be no order as to costs. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Counsel for the Wong-Goo-TT-OO Applicant: RI Viner AO QC

Solicitor for the Wong-Goo-TT-OO Applicant: Kitto & Kitto

Counsel for the State of Western Australia: G Ranson

Solicitor for the State of Western Australia: State Solicitors Office

Counsel for the Pastoralists J Steenhof

Solicitor for the Pastoralists: Cornerstone Legal

Counsel for Jean Lockyer & Ors (Kuruma Marthudunera People): R Webb QC with S Burnside

Solicitor for Jean Lockyer & Ors (Kuruma Marthudunera People): Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation

Counsel for the Ngarluma People: C Tan

Solicitor for the Ngarluma People: Pilbara Native Title Service