Fesl v State of Queensland

REASONS FOR JUDGMENT 1 On 19 November 2004, I adjourned for hearing on Tuesday 14 December 2004 two notices of motion. One was the present notice of motion filed by Dr Fesl on 17 November seeking leave to discontinue her claim. The second notice of motion was filed by Alexander Davidson, Cecil Fisher and Mischa Fisher on 11 October 2004 seeking to replace Dr Fesl as applicant in the claim. 2 As the parties will see from the reasons which follow, the primary reason for acceding to the application for leave to discontinue is that it appears that the application was never authorised as required by s 61(1) of the Native Title Act 1993 (Cth) ('the Act'). Dr Fesl herself now says that that is the case but, in addition, no other person now appearing appears to support the initial authorisation of the application, and that includes the Davidson interests. Consequently, the proceeding is likely to be held to be "flawed from the outset", adopting the words of O'Loughlin J in De Rose v State of South Australia (2002) FCA 1342 at 933; or the proceeding is likely to be held to be "foredoomed to fail", using the words of Wilcox J in Moran v Minister for Land and Water Conservation for the State of New South Wales (1999) FCA 1637 at par 47. 3 Since nobody appears now to contend that the original application was properly authorised, it seems to me that this is not a "claimant application", as defined in the dictionary section of the Act, s 253, where "claimant application" means: '… A native title determination application that a native title claim group has authorised to be made, and unless the contrary intention appears includes such an application that has been amended.' 4 The essence of a claimant application, it seems to me, is one which requires that there has been an authorisation of the native title claim group. 5 Authorisation as a fact is a threshold requirement for the operation of s 66B of the Act. 6 Concerning Order 22 of the Federal Court Rules, and in particular O 22 r 2 sub-rule (2), which requires that 'a party who represents any other person in the proceeding shall not discontinue his claim for relief under sub-rule (1) without the leave of the Court', I note the observations of Graham J in Covell Matthews and Partners v French Wools Ltd (1977) 1 WLR 876, where his Honour said, at 879: 'The principles to be culled from these cases are, in my judgment, that the court will, normally, at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave, if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved.' 7 I am very conscious of the fact that discontinuance will deprive the present claimants of the "benefits of registration". However, discontinuance will not deprive them of benefits already obtained, and it will not prevent a new claim being registered, assuming the new claim satisfies the registration requirements of the Act. The native title holders, including any who are not claimants under the present claim, retain protections afforded by the future act provisions of the Act. 8 For the above reasons, and those which follow, it seems to me efficient, and in the interests of justice, to make orders: (1) The applicant, Dr Fesl, be given leave to discontinue the proceedings. (2) The relief sought in the notice of motion filed by the Davidson interests on 11 October 2004 is refused. 9 In respect of the motion seeking replacement of Dr Fesl, numerous affidavits have been filed in support of the motion. As at 19 November 2004, all of the deponents were indigenous respondents to the application with the exception of one who is a member of the claimant group. There were affidavits filed in opposition to the motion, the deponents of which were all members of the native title claimant group. The first by Nurdon Serico was filed on 5 November 2004. He is the brother of Dr Fesl, the applicant, and he deposed to the customary decision making processes of the Gubbi Gubbi people and contended that the 9 October 2004 meeting was in contravention of those processes. 10 There were two affidavits by Dr Fesl, one filed 5 November 2004 and one filed 12 November 2004, as well as an affidavit by Evelyn Serico filed 10 November 2004. Evelyn Serico is Dr Fesl's mother. It deposes to the fact that she was not sent an invitation to the 9 October 2004 meeting in Gympie. 11 There were affidavits filed by two Gubbi Gubbi elders on 18 November 2004: Jimmy Edwards and Rachael May Long. Those persons were represented by Mr Preston of counsel on a pro bono basis, and he also acts on the same basis for the Jinibara people. 12 Further material was filed subsequent to 19 November 2004, not all of which identifies to which motion it relates. 13 There is an important affidavit of Dr Fesl filed 26 November 2004. In that affidavit, Dr Fesl recites in more detail how she came to the view that she should not continue with the claim because of the matters which came to her attention at the time of the strike out application (in 2003) and subsequently. She says after reading the affidavits in support of the strike out application, she had concerns about whether she had been truly authorised according to the consensus model of decision-making which is the traditional cultural method of decision-making of the Gubbi Gubbi. She deposes to Mr Peter Gore (who acted for other parties to the application) advising her that he would assist in preparing material for her in opposition to the strike out, because it would be difficult for a new claim to become registered since the decision in State of Western Australia v Ward [2003] FCAFC 124. She deposes to agreeing as she did not want the claim to be lost forever. Mr Gore produced affidavits for her signature in respect of the strike out application. 14 Dr Fesl deposes to subsequently becoming aware that Mr Gore was funded to assist her by AshtonLomax Property Development Management Services (ALPDMS), the organisation currently negotiating an Indigenous Land Use Agreement with the Gubbi Gubbi people headed by Mr Alex Davidson. That company is not seeking reimbursement from her of the funds expended in the strike out application. Dr Fesl was party to some negotiations prior to the strike out application and was interested in negotiating an ILUA and was given a draft copy of a proposal by which funds would be made available from ALPDMS to defend the strike out application. 15 Dr Fesl deposes to not being present at the 9 October 2004 meeting but that she met with senior members later, at which time she was urged to discontinue to enable another claim to be filed which was properly authorised using the consensus method of determination and which could include all members of the Gubbi Gubbi (including the new ones she has recently identified). Dr Fesl deposes to one of the elders (Bessie Bond) saying that she did not authorise the original claim to be filed by her. She also deposes to objections being recorded by Alex Davidson and others at the time the claim was going through the registration test that the claim was not authorised. 16 Her affidavit in support of her motion for orders that 'leave of the court be granted to the applicant in the proceedings to discontinue the proceedings' says: '… 2. When I lodged this claim, I believed that I had the authorisation of all of the Elders of our group descended matrilineally and biologically from our ancestor Maggie Palmer and her daughters Lucy Crowe and Annie Crowe. On the Lucy Crowe side they are my mother Evelyn Serico who is 96 years old, the late uncle Clifford Monkland, at the time 93 years old, and the senior male Elder on that side, Nurdon Serico. 3. On the Annie Crowe side the Elders are Bessie Bond, Rae Long and Lois Gulash and the senior male Elder is Jimmy Edwards. 4. At the time I acted on behalf of the Elders and I believed the claim had been properly authorised by them through their coming to a general consensus that it should be lodged. Some time after the claim had been lodged I found out that some important Elders were not happy with the process and indeed had not given their approval as I originally thought. 5. More recently to this I found another Gubbi family whom the Elders know and I believe may be able to provide evidence that they are Gubbi Gubbi but not related to us through my great great grandmother Maggie Palmer such as the Chillie family, the Muckan family, and some of the Rainbow family. There may be other Gubbi Gubbi families who can provide evidence that they are Gubbi Gubbi but who have not as yet come forward. These include some members of the Tomlinson family. There may also be others however, I have not seen their genealogies. 6. It is therefore important that the proper processes be carried both in having proof of identification and in authorisation by the Elders. 7. I am a part time member of the Aboriginal Land Tribunal and through my experiences in that capacity I am aware that we need to comply in all respects in meeting the needs of our people and carrying out the correct processes to ensure a satisfactory outcome. 8. The native title process now requires that all persons in the claim group be able to be identified with certainty on the claim application. 9. By withdrawing at this stage we will have the opportunity over the next few months to prepare and lodge a claim which conforms with all requirements of the Native Title Act and which includes all of those individuals/families who have evidenced their right to be part of it. 10. I have received permission from all of the Elders except Lois Gulash named in paragraphs 2 and 3 above to withdraw this claim. I have not been able to contact her although I have tried to contact her by telephone.' 17 On the motion seeking leave to discontinue, the applicant in those proceedings, Dr Fesl, wishes that she be permitted to discontinue her claim. The State of Queensland, in its submissions, supports discontinuance, as do the submissions by Mr Preston on behalf of one indigenous claimant in the original proceedings, and a large number of indigenous respondents. The motion seeking leave for discontinuance is opposed by a group of persons associated with the interests of Mr Davidson. 18 It was submitted on behalf of the Davidson group that: '… the native title applicant now deposes that despite her earlier belief that she was authorized by the members of the native title claim group, in the course of recent proceedings, she discovered that she did not have the authority of important members of the claim group. It is submitted that this admission means that the native title applicant does not have the authority of all members of the claim group to exercise the powers of an applicant.… It is submitted that this admission means the native title applicant does not have the authority of all members of the claim group to exercise the power of an applicant. On this basis she cannot exercise those powers to, for example, discontinue the claim. The admission that she lacks the authority she thought she had does not render the claim void ab initio it supports the application for the s 66B applicants to replace her by persons who have been authorized by members of the native title claim group to do so.' 19 There does not seem to me much persuasive value in the argument relied on by the Davidson interests referred to above, which is that because Dr Fesl lacked authorisation to initiate the claim, she is powerless to seek to discontinue it. 20 On 14 December 2004, I observed: '… It seems to me that I ought to proceed to consider the question of discontinuance because if the court permits discontinuance of the claim, the question of a Section 66B replacement does not apply.' 21 The contention by the Davidson group that the proposed replacement of Dr Fesl was authorised pursuant to s 66B of the Act is the subject of fierce controversy in the affidavit material. It therefore seems to me to be right to consider first the notice of motion seeking leave to discontinue. 22 All parties are agreed that Dr Fesl was not authorised by the claimant group, although there is a wide diversity of opinion as to what is the correct claimant group. In this factual context, it is important to look at the definition of "claimant application" in s 253 of the Act, which says that a claimant application 'means a native title determination application that a native title claim group has authorised to be made'. If the application that was in fact made was not an application that a native title claim group had authorised to be made, the application is not a "claimant application". One consequence of this is that s 66B of the Act (which has, in my opinion, the precondition that the application is a claimant application) is in my opinion incapable of application. 23 Mr Andrew Preston has indicated to the Court that he has instructions to represent the Jinibara People, Lawrence Charles Bond Snr, Tony Richard Dalton, Grace Rosetta Hegarty, Sonia Minniecon, Lorraine Murray, Margaret Pitt-Lythgoe, Keith Warner and Charles Williams. He submitted that: '… Dr Fesl had no authority to be the applicant on the claim.' and further: '… persons including Alexander Davidson, Doreen Fisher, Mischa Fisher, Amanda Davidson, Marjorie Fisher and all of her daughters, Drew Gulash have asserted publicly on numerous occasions since the claim was lodged that they had not authorised the claim and were not even consulted about it. Significantly, an affidavit affirmed in August last year by Alex Davidson deposing that he and his family have never authorised this claim was filed as part of the motion to strike the claim out last year.' 24 The fact of authorisation is a threshold requirement for the operation of s 66B of the Act. The section is based on the condition that the applicant in a native title claim had authority to act which was conferred at the time when the claim was made: Grant v Williams [2004] FCAFC 178per Lander J at [52]-[53], with whom North J agreed at [1] and Dowsett J agreed at [10]. In my opinion, if a claim was not authorised at the time it was made, then s 66B can have no room to operate. 25 No party contends at the present time that Dr Fesl was authorised to make the claim which she did on 24 December 1999. It is useful to note the observations of French J in Daniel and Others v Western Australia and Others (2003) 194 ALR 278 at 284: 'The power to remove an applicant under s 66B(1) depends upon a cessation of the authority conferred upon the person to be removed or alternatively action by that person in excess of the authority conferred by the claim group. The cessation of authority conferred upon an applicant requires decision-making on the part of the native title claimant group …' This observation reinforces the necessity for a claimant application initially to be properly authorised: no party in the present proceedings now asserts that that was the case in the present application. 26 It may be that the motion by the Davidson interests to substitute Dr Fesl as applicant with others is brought for an ulterior purpose and not brought bona fide to vindicate the genuine claims of the proposed substituted applicant. It is unnecessary for me to reach a conclusion concerning that contention. 27 I am satisfied that the original application was not authorised as required by s 61 of the Act and does not constitute a "claimant application" as defined by s 253 of the Act. I am conscious of the difficulties discontinuing the original application will cause, but it has to be recognised that there are serious disagreements concerning the identification of the proper claimant group and the basis of identification of that group. 28 Those considerations support the conclusion that I reach that, notwithstanding the undoubted difficulties that flow from permitting discontinuance of an application which has received registration and which is now more than five years old might bring, it is appropriate in all the circumstances of the present case to permit leave to Dr Fesl to discontinue the proceedings she initiated in 1999, pursuant to O 22 r 2(2) of the Rules of the Federal Court. 29 It was accepted by Ms Phillips on behalf of the Davidson group that should I reach the conclusion that Dr Fesl should be granted leave to discontinue, it would be otiose to consider the motion seeking substitution pursuant to the provisions of s 66B. 30 The order of the Court is that the applicant, Dr Fesl, be given leave to discontinue the proceedings. The relief sought in the notice of motion filed by the Davidson interests on 11 October 2004 is refused. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender