Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales

REASONS FOR JUDGMENT 1 Notices of motion in this proceeding and in a related matter (NG 6082 of 1998) were filed on 19 August 2003 by New South Wales Native Title Services Limited ('NTS'). On 12 September 2003 I refused to dismiss this matter as requested in the notice of motion but made certain of the orders sought in the alternative. The orders and the reasons for making them are set out in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 ('earlier reasons'), which can be found on the Court's website at http://www.fedcourt.gov.au. 2 The orders were along the lines of those made by French J in Frazer v State of Western Australia (2003) 198 ALR 303 and laid down a timetable which, if adhered to, would have made some progress in the preparation of the matter for hearing. Among them were orders that the State of New South Wales ('State'), NTS and the applicants agree a program for the negotiation and mediation of the application over a 12 month period ('mediation program'). Under Order 1, the applicants were required to nominate a legally qualified person to represent them in the application. Order 5 was as follows: 'In the event that either: i. No such program can be agreed by 30 October 2003; or ii. no nomination is received pursuant to Order 1 by 1 October 2003; the applicants and other interested parties are required to show cause at the next directions hearing why the application should not be dismissed.' 3 Both matters were listed for hearing of the extant portions of the notices of motion on 2 December 2003. I also ordered that any party who wished to place material before the Court in relation to the above should file and serve any such material by 13 November 2003. Some days after that date, at the request of the applicants' representative, Mr Mark Dengate, I ordered that the time for filing of this material be extended to 5 pm on 27 November 2003. Mr Dengate, who is not legally qualified, was given leave to represent the applicants under s 85 of the Native Title Act 1993 (Cth) in November 1999. On 28 November 2003 December nine affidavits were filed on behalf of the applicants. On 1 December 2003 two further affidavits were filed on their behalf. 4 Before the hearing Mr Dengate contacted the Court seeking leave to appear at the hearing by telephone. My previous experiences of Mr Dengate appearing by telephone have been far from satisfactory. Even when Mr Dengate has been able to attend Court in person his enthusiasm for his clients' cause and his lack of discipline have created problems. The difficulty is considerably increased when he appears by telephone. As I commented at [15] in the earlier reasons, '[t]hose occasions invariably have been marked by difficulties with reception or with the phone battery, or both'. My experience is that in such circumstances Mr Dengate is unable to assist the Court or his clients and his attempts to do so are often disruptive; see [16] of the earlier reasons. Accordingly I refused leave to appear by telephone. 5 When the matter came before me on 2 December 2003 there had been no nomination of a legal representative and no progress had been made in relation to the mediation program. Some light was thrown on this lack of progress by a mediation report lodged by the National Native Title Tribunal ('NNTT') on 30 October 2003. In this report an NNTT member explains that despite extensive dialogue between the applicants, Mr Dengate, the State and NTS, they have been unable to agree on a program that meets the requirements laid down in the orders of 12 September 2003. The report further states that in the prevailing situation NNTT is unable to play a constructive role in the mediation of this matter. 6 The applicants' failure to appoint a legal representative is also a matter of concern. With the passage of time it has been abundantly clear that Mr Dengate does not have the skills necessary to represent the applicants in a proceeding of this nature (see [14] - [16] of the earlier reasons). Without suggesting that legal representation would be sufficient for progress in this matter, both NTS and the State have expressed the opinion that legal representation for the applicants is essential. When I earlier refused to dismiss the proceeding I made it abundantly clear to the applicants that compliance with the orders made on 12 September 2003 was necessary if the matter was not to be dismissed. In the earlier reasons, at [18], I said: 'I am not prepared to dismiss the applications at this stage as I believe that the alternative orders proposed have the capacity to give clear direction to the claims for the first time since their inception. These matters are listed to come before me again on 2 December 2003, at which time I am hopeful that the parties will have availed themselves of this final opportunity to take constructive steps towards the determination of the claims.' 7 Unfortunately those hopes were misplaced. The parties have not taken advantage of the opportunity presented to them. They have not appointed legal representatives. Instead they have filed a number of affidavits (see [3] above), which raise matters most of which are entirely irrelevant for present purposes. Nine of those affidavits refer to a meeting held on 5 July 2002 which was described in my earlier reasons for making a s 66B order in the matter of Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517. Those affidavits were sworn in March 2003 and are completely irrelevant for present purposes. 8 Two of the affidavits, filed on 1 December 2003, refer to a meeting on 28 July 2003 and to the difficulties that the deponents say they have had in dealing with the State and NTS in mediation and in obtaining legal representation. In so far as they are at all relevant, these affidavits confirm my view that progress in this matter is impossible (see [10]-[13] of the earlier reasons) and that it should be dismissed under O 20 r 2(1)(c) of the Federal Court Rules as an abuse of process. As Wilcox J commented in Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [46]: '…the term "abuse of the process of the Court" has a wide connotation. It is often applied to a proceeding instituted for a collateral or improper purpose. But the term is not so confined. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said: '…it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceeding will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.' 9 Justice Wilcox found that the proceedings in Moran were foredoomed to fail and dismissed them. The problem is somewhat different here. I cannot say that these proceedings are doomed to fail. The problem is that in the five years since they commenced they have not advanced far enough to make that assessment. In my view however, it can also be an abuse of the processes of the Court for a matter to drag on interminably with no hope of it ever being in a state to be heard. Already the parties to this matter have been involved in negotiations, mediation and disputes before the Court for over five years with no significant progress being made on the substance of the application. I do not wish to attribute blame to anyone. It is sufficient that I am convinced that progress will not occur. In my view the proceeding should be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.