McKellar on behalf of the Wongkumara People v State of Queensland - [2020] FCA 1394 - FCA 2020 case summary — Zoe

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McKellar on behalf of the Wongkumara People v State of Queensland

[2020] FCA 1394

Federal Court of Australia|2020-09-28|Before: Murphy J

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Court

Federal Court of Australia

Decision date

2020-09-28

Before

Murphy J

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

INTRODUCTION 1 Before the Court is an interlocutory application by Coral Ann King in which she seeks an order to be joined as a respondent to this proceeding pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA). The substantive proceeding is an application for a native title determination brought by Clancy John McKellar and others on behalf of a native title claim group described as the Wongkumara People, comprising the descendants of one or more of 15 apical ancestors named in the second amended application (the Wongkumara application). On behalf of the claim group the Wongkumara applicants claim to have native title rights and interests in relation to a large area in the south-west corner of Queensland and the north-west corner of New South Wales, as shown in the map which is Schedule "A" to these reasons (the Wongkumara claim area). 2 In the joinder application Mrs King claims that through descent from her grandmother Toney (or Tonie) Booth, a Kungardutyi woman she (and other members of a group which I will describe as "the Booth family") has acquired native title rights and interests in relation to the northern half of the Wongkumara claim area. The apical ancestors relied on in the Wongkumara application do not include Toney Booth. 3 For the reasons I explain it is not in the interests of justice to allow the joinder application. First, that is because different members of the Booth family have been parties in three proceedings in which they have claimed that through descent from Toney they have acquired native title rights and interests in relation to the Wongkumara claim area, each time unsuccessfully. Mrs King was not a party in the first two of those proceedings, but she was represented in them by her cousin Geoffrey Booth, and she was an active participant including by giving evidence in support of the claimed native title rights and interests: (a) in the first proceeding Mrs King's cousins, Geoffrey Booth and Dennis Fisher, were respondents to a native title determination application brought on behalf of the Boonthamurra People in relation to the Boonthamurra claim area, which abuts the Wongkumara claim area. They claimed that through descent from Toney and another Aboriginal woman, Clara, they had traditional rights and interests in relation to areas which overlapped both those claim areas. The Court did not accept that they had acquired such rights and interests through Clara or Toney. In relation to the claim based in descent from Toney, the Court found that Kungardutyi country is well remote from the Boonthamurra claim, and in north-western New South Wales. That is also far from the area in which, in the joinder application, Mrs King claims to have traditional rights and interests through descent from Toney: see Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901; (2014) 313 ALR 138 (Mansfield J); (b) in the second proceeding Geoffrey Booth and Dennis Fisher were respondents to the Wongkumara application from 2008. They claimed that through descent from Clara, her son Frank Booth, and Toney they had acquired native title rights and interests in relation to the Wongkumara claim area. In 2016 they withdrew when the Wongkumara applicants brought an interlocutory application seeking their removal; and (c) in the third proceeding Mrs King, Geoffrey Booth and two others were applicants in a native title determination application brought on behalf of a claim group described as the Kungardutyi Punthamara People, in which they claimed that through descent from Clara and Toney, amongst others, they had acquired native title rights and interests in relation to the Wongkumara claim area. The Court dismissed the application on grounds including that it was an abuse of process having regard to the findings in Wallace, and because it had no reasonable prospects of success: see Booth on behalf of the Kungardutyi Punthamara People v State of Queensland [2017] FCA 638 (Jagot J). 4 To allow the joinder application would be to permit Mrs King to ignore the judgment in Booth and to avoid the findings in Wallace and in Booth. It would allow her to claim, in effect for the fourth time, that descent from Toney founds native title rights and interests in relation to the Wongkumara claim area. As a party in Booth it was open to Mrs King to appeal if she considered that decision to be wrong and she did not do so. Instead through the joinder application she now seeks to make the same claim in relation to a subset of the same claim area as in Booth based on the same apical ancestor, notwithstanding the judgments in Booth and Wallace. The bringing of similar claims in successive proceedings in this way amounts to an abuse of process. It is not in the interests of justice to allow the joinder application so that Mrs King can again litigate a claim to have native title rights and interests in relation to the Wongkumara claim area through descent from Toney. 5 Mrs King denies that her application is an abuse of process based, in summary, on contentions that: (a) she is not bound by the findings in Wallace as that decision concerned the Boonthamurra rather than the Wongkumara claim area and she was not a party; (b) the decision in Booth in which she was a party was based on the findings in Wallace; and (c) the findings in Wallace and Booth can now be shown to be unreliable as Mrs King has obtained "fresh evidence" which is sufficient to show that the findings in Wallace and Booth are unreliable. The material Mrs King asserts to be fresh evidence is primarily a statutory declaration made on 17 December 2017 by Dr Luise Hercus AM, an expert linguist in relation to Aboriginal languages, who has since passed away (the Hercus Declaration). 6 In my view Mrs King failed to confront the fact that she was a party in the Booth proceeding, and if she considered it to be wrongly decided the appropriate course for her to take was to appeal, not to wait a year and a half and then commence essentially the same claim differently cloaked. In effect, the joinder application invites a single judge to revisit findings made by other judges of the same Court on the basis of so-called fresh evidence. I am not persuaded that is permissible, and if it is permissible I am not persuaded it is appropriate in the circumstances of the present case. That is particularly so when the Hercus Declaration is not in any real sense "fresh". It is a reinterpretation by Dr Hercus in 2017 of historical records and her earlier research, which material was available at the time the Wallace and Booth proceedings were decided. Nor, for the reasons I explain does the Hercus Declaration have the significance which Mrs King seeks to give it. 7 Second, even if, contrary to my view, it be accepted that the joinder application is not an abuse of process, I consider it nevertheless appropriate to refuse joinder because of the prejudice which will be suffered by Wongkumara applicants and Queensland South Native Title Services Ltd (QSNTS). The Wongkumara application was filed in March 2008 and the joinder application was not made until 10½ years later, in November 2018. The parties to the Wongkumara application have already suffered significant cost and delay through the earlier proceedings by members of the Booth family, through being respondents to the Wongkumara application and then withdrawing when challenged and also through the Booth proceeding. QSNTS was also a party to the Wallace proceeding. No hearing date has been fixed but all of the applicants' expert evidence has been filed, and the parties are likely to incur significant further costs and delay if the applicants' experts are required to prepare further reports to address the expert evidence upon which Mrs King now seeks to rely. 8 I accept that Mrs King is likely to be prejudiced if the joinder application is refused. I have given considerable weight to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination. But the prejudice Mrs King is likely to suffer must be seen in the context of the substantial delay in bringing the joinder application and that she and other members of the Booth family took up three earlier opportunities to assert any traditional rights and interests they claimed to have in relation to the Wongkumara claim area through descent from Toney, and each time they were unsuccessful. In my view it would be contrary to the interests of justice to allow the joinder application so that Mrs King can once more advance such a claim and vex the Wongkumara applicants and QSNTS with further inconvenience, cost and delay. 9 I have made orders to dismiss the joinder application, and have invited the parties to make submissions on the question of costs.

[3]

THE PRINCIPLES RELEVANT TO JOINDER 14 Section 84(5) of the NTA provides as follows: The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 15 There is no dispute between the parties as to the principles to be applied in a joinder application under s 84(5). The joinder applicant must satisfy the following three requirements: (a) that the joinder applicant has an interest in the relevant claim area for the purpose of s 84(5) of the NTA. Such an interest "need not be proprietary, or even legal or equitable. But the interest must be 'genuine', not indirect, remote, or 'lacking substance'; and it must be capable of clear definition: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [28] (Mansfield J); Chippendale on behalf of the Wuthathi People #2 v State of Queensland [2012] FCA 310, [14]-[16] (Greenwood J). It is uncontentious that native title rights and interests are an interest capable of satisfying the requirements of s 84(5): Far West Coast at [30]; (b) that the identified interest in the relevant claim area may be affected by a determination of native title in the proceeding; and (c) that it is in the interests of justice for the joinder applicant to be joined as a party. If the Court is satisfied of those matters there is no residual discretion to exercise: Far West Coast at [26]-[27]; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [18] (Rangiah J). 16 In Blucher at [21], Rangiah J summarised some of the principles relevant to joinder of persons asserting competing native title rights and interests as follows: (1) The interests of persons who claim to hold native title rights and interests in relation to the land or waters the subject of a proceeding may be sufficient interests. (2) A member of another native title group cannot be joined as a respondent for the purpose of acting as a representative to assert native title rights on behalf of the other group. That is because the combined effect of ss 13, 61, 213 and 225 is that an application for a determination of native title can only be made by a duly authorised applicant using the procedures in Pt 3 of the NTA. (3) A member of another native title group may be joined as a respondent for the purpose of "defensively asserting" native title rights and interests. Such a person is only permitted to pursue a personal claim to such rights and interests: that is, to protect them from erosion, dilution or discount. [See Munn v State of Queensland [2002] FCA 486 at [8]; Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22], [24]-[25]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) (2007) 164 FCR 181 at [10]-[11], [26]; Commonwealth v Clifton (2007) 164 FCR 355 at [48], [57]-[58] and [61]; Moses v Western Australia (2007) 160 FCR 148 at [18]; Holborow v State of Western Australia [2009] FCA 1200 at [4]-[5]; Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [15]-[21]; Lander v State of South Australia [2016] FCA 307 at [73]; A.D. (deceased) on behalf of the Mirning People v State of Western Australia (No 2) [2013] FCA 1000 at [56]-[57]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19].] 17 An applicant for joinder need only demonstrate the existence of the interest he or she relies upon for joinder on a prima facie basis: Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 at [6] (Kiefel J as her Honour then was); Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [8] (Reeves J). 18 In Gamogab v Akiba (2007) FCAFC 74; (2007) 159 FCR 578 at [56]-[64] Gyles J, with whom Sundberg J agreed, said that: (a) it is relevant that the joinder applicant could have been joined as a party to the proceeding as of right if he or she had applied in time. This indicates that the principal issue which arises under s 84(5) is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined (at [59]); (b) it would be odd in this day and age if delay in applying, in itself, were to radically prejudice a potential party (at [59]); (c) it is fundamental that an order which directly affects a third person's rights or liabilities should not be made unless the person is joined as a party (at [60]); (d) considerable weight should be given to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination (at [64]); and (e) if necessary, conditions may be imposed upon a joinder) (at [63]).

[5]

THE RELEVANT GEOGRAPHY 20 The south-western section of Queensland has been the subject of numerous competing claims for the recognition of native title rights and interests. 21 As shown in Schedule "A", the Wongkumara application covers an area in south-west Queensland and north-west NSW, stretching above Mount Howitt, Queensland to the north, in the south to Milparinka Post Office, in the west to the border between Queensland and South Australia and to the Wilson River, Conbar outstation and Nockatunga to the east. 22 To the south-east the Wongkumara claim area is abutted by an area the subject of a native title determination made on 2 July 2014 in favour of the Kullilli People (the Kullilli area): see Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691. 23 To the north-east the Wongkumara claim area is abutted by an area the subject of a native title determination made on 25 June 2015 in favour of the Boonthamurra People (the Boonthamurra area): see Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600. Schedule "C" to these reasons is a map of the Boonthamurra area. 24 To the west the Wongkumara claim area is abutted by an area the subject of a native title determination made on 16 December 2015 in favour of the Yandruwandha and Yawarrawarrka People (the Yandruwandha/Yawarrawarrka area): Nicholls v State of South Australia [2015] FCA 1407. 25 In the Booth proceeding Mrs King, Geoffrey Booth and two others, as applicants, on behalf of a claim group described as the Kungardutyi Punthamara People claimed to have native title rights and interests in relation to an area overlapping the entirety of the Wongkumara claim area above the Queensland/New South Wales border, based on descent from Clara, Toney and other apical ancestors as shown in Schedule "D" to these reasons (the Kungardutyi Punthamara claim area). 26 In the joinder application Mrs King claims to have native title rights and interests based on descent from Toney in relation to the northern half of the Wongkumara claim area, above a line drawn west from Noccundra to the Queensland/South Australian border (the joinder claim area), as shown in Schedule "E" to these reasons which is consistent with exhibit "CK-1". 27 Schedule "F" to these reasons is a map showing the relationship of the Wongkumara claim area to the areas covered by native title determinations made in favour of the Kullilli, Boonthamurra and Yandruwandha/Yawarrawarrka Peoples, and overlaid with the Kungardutyi Punthamara claim area.

[9]

Geoffrey Booth and Dennis Fisher as respondents in the Wallace proceeding 32 In 2006 Mark Wallace and Barbara Olsen, as applicants, commenced a native title determination application on behalf of a native title claim group described as the Boonthamurra People (QUD435/2006) in which they claimed to have native title rights and interests in relation to the Boonthamurra claim area (Schedule "C") by reason of (as amended) their descent from 24 named apical ancestors. 33 In February 2008, Geoffrey Booth and Dennis Fisher became respondents to the Wallace proceeding. They filed "Particulars of Interest" and a Statement of Agreed Facts and Evidence (as annexed to Mr Neumann's affidavit) that show that they claimed to have acquired native title rights and interests both in the Boonthamurra claim area and extending substantially beyond it into the Wongkumara claim area, through descent from Clara, Frank Booth and Toney. They described themselves both as Bundamurra People and Kungardutji People and said that those two Peoples shared the same language, had many of the same ceremonies, but had different traditional country. They described themselves as the "Booth family respondents". 34 The Court made orders for the determination of separate questions to resolve the parties' competing claims to hold native title rights and interests in relation to the Boonthamurra claim area. Those questions required the Court, amongst other things, to determine whether the Booth family respondents had native title rights and interests, through descent from Clara and Toney, in areas within the Boonthamurra claim area abutting the Wongkumara claim area. 35 The relevant separate questions, and the answers to those questions decided by Mansfield J in Wallace, were as follows (at [6] and [109]): (1) Were the deceased persons known as Clara and her son Frank Booth Boonthamurra persons? No. (2) Did the geographical area with which Clara and her son Frank Booth were traditionally associated extend into the claim area of this claim, and if so to what extent? On the basis that the expression "traditionally associated" conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim: No. (3) If so, is it reasonably arguable that Clara and her son Frank Booth acquired native title rights and interests in any part of the Boonthamurra claim area on the basis of that descent, other than as members of the claim group? Not necessary to answer. (4) Were the deceased persons known as Toby and/or Jenny, and their daughter, Toney: (a) Boonthamurra persons; No. (b) Kungardutyi persons? Not necessary to answer (see answer to question (5). (5) Did the geographical area with which Toby and/or Jenny, and their daughter Toney were traditionally associated extend into the claim area of this claim and if so to what extent? On the basis that the expression "traditionally associated" conveys that those persons held under the traditional laws and customs of a relevant native title claim group native title rights and interests in the claim area of this claim: No. (6) If so, is it reasonably arguable that persons who are descended from Toney acquired native title rights and interests in any part of the Boonthamurra claim area on the basis of that dissent, other than as members of the claim group? Not necessary to answer. 36 In the hearing to determine the separate questions the Booth family respondents relied on evidence from various members of the Booth family, including Mrs King. His Honour noted their evidence as follows: (a) Mrs King said that Boonthamurra was her chosen tribe but that "we referred to ourselves as the 'Wilson River Clan' ", being people who lived around the Nockatunga and Noccundra area, which was the area where her father, Bill Booth, and his tribe lived (at [68]). (b) Ivy Booth, Clancy Booth's wife (and Geoffrey Booth's mother) said that Clancy always told her that he was Punthamara and that his country was the Wilson River area (at [67]); (c) Geoffrey Booth said he was told by his father, Clancy Booth, that Frank Booth, his grandfather, was from Noccundra and Nockatunga. He said that around "that way" was Frank Booth's country and that Nockatunga was "the main feature and central to his country" (at [65]). He testified that Frank Booth was a Boonthamurra man, and that Clancy Booth was from Nockatunga and that his tribe was the Boonthamurra/Wilson River tribe. Mansfield J said that it was in the evidence of Geoffrey Booth and Ivy Booth that the focus on the Wilson River area emerged, noting that the Wilson River area was largely to the south of the Boonthamurra claim area (at [67]); (d) in relation to Toney, Geoffrey Booth said that she was a Kungadutyi woman who came from "around Eromanga" and that was her country (at [65]). He did not claim to be Kungardutyi as he was following his father's line, but he had revised his position to also claim to be Boonthamurra through Toney. He said Toney chose Boonthamurra for Clancy Booth and that Clancy Booth made a conscious decision to not identify as Kungardutji "in order to keep the family together", though Clancy Booth also told his son "a lot about Kungadutji laws and customs" (at [65]). He claimed that the country associated with Toney's birthplace at Mount Howitt extended westward from there (at [108]); and (e) Dennis Fisher gave evidence that his mother, Dolly Fisher (nee Booth), was Boonthamurra and she told him that was her tribe. She died when he was very young. That differed from what he said in his affidavit of 11 November 2008 in which he stated that he learned he was Boonthamurra from his cousin Tom when he was an adult. He lived over the road from Frank Booth for seven years in the 1960s and Frank Booth claimed him for his group, but he said he did not learn anything from Frank Booth. That differed from his affidavit of November 2008, where he said he learnt about their family and their history from Geoffrey Booth, which he did not elaborate upon during the hearing (at [69]). Mansfield J did not consider his evidence advanced the claim of the Booth family respondents to be of the Boonthamurra People. As his Honour noted, the townships of Nockatunga and Noccundra are more or less on the boundary of the Wongkumara and Kullilli claim areas (at [19]), and the Wilson River area overlaps the Boonthamurra, Wongkumara and Kullilli claim areas (at [47]). 37 In relation to the claim based in descent from Clara, Mansfield J concluded on the evidence that Clara was a Yandruwandha/Yawarrawarrka woman, not Boonthamurra, and that it followed that Frank Booth and his lineal descendants including Clancy Booth and the Booth/Fisher families are not Boonthamurra persons through Clara, with native title rights and interests in relation to the Boonthamurra claim area (at [86]-[87], [89], [95]-[96] and [98]). 38 In relation to the claim based in descent from Toney, Mansfield J accepted that in 1938, Norman Tindale, an Australian anthropologist and archaeologist, who spent many years of his professional life mapping tribal areas of Aboriginal people and undertaking genealogies of the Aboriginal population in parts of Australia, identified Toney as of the Kungardutyi tribe and "of Mount Howitt". His Honour found that Toney was a Kungardutyi woman born in about 1876-1880 at Mount Howitt Station (at [101], [105]). Mount Howitt Station is roughly on the boundary of the Boonthamurra and Wongkumara claim areas. 39 The question remained though as to whether Toney's country, Kungardutyi country, was part of the Boonthamurra claim area (at [105]). 40 To decide that question the Court had before it: (a) the evidence of Barbara Bond and Mark Wallace who denied that the Booth family were Boonthamurra (at [71]-[72]), the evidence given by the four members of the Booth family summarised above, together with the evidence of Mr Hoolihan as to what Clancy Booth had told him (at [56]-[63]), and some letters in which Clancy Booth described himself as a Kullilli elder rather than Boonthamurra (at [59]-[60]); (b) a substantial body of expert anthropological evidence, including a joint report by a conclave of experts comprising Professor Trigger, Dr Andrew Sneddon, Dr Fiona Powell and Inge Riebe. Professor Trigger, Dr Sneddon, Dr Powell and Michael Southon, who conducted the primary research for the Wallace applicants, also gave concurrent evidence in the hearing. 41 His Honour gave careful consideration to the lay and expert evidence, giving particular attention to the evidence of Dr Powell (at [77]-[83]). In relation to Dr Powell's evidence his Honour said (at [83]): Most importantly, the crucial part of Dr Powell's reasoning was to tie the term Kungadutji to a language or language land holding group with country that was occupied by Punthamara and/or Wongkumara People. She expressed the view that Kungadutji was the name of the language distinguished by others as "Punthamara" and/or "Wankumara" and that each of Kungadutji, "Punthamara" and "Wankumara" were socio-territorial identities associated with the region including Mt Howitt and the Wilson River region. Dr Powell's view was that, over time, Kungadutji in that way stopped being used and thus, when Frank Booth identified himself as Kungadutji to Tindale, he was also in effect identifying himself as Punthamara (spelling variant of Boonthamurra). There are obviously several steps in that process of reasoning: the location of Kungadutji language use and its country; the use of that term by Frank Booth as indicating his country; and the step of equating Kungadutji country with Boonthamurra country for the purpose of tying Frank Booth to the present claim area. As noted above, there is an alternative use of the term Kungadutji - to describe an initiated man. So much was not in dispute. The step of taking its use by Frank Booth, as the informant to Tindale, as indicating that it describes his country rather than his initiated status is tied to the probability or otherwise that it describes his country around or in relation to the present claim area. 42 Mansfield J did not accept Dr Powell's view that Kungardutyi country was in the Boonthamurra claim area. His Honour said (at [84]): I think the strong preponderance of the evidence is that the Kungadutji People, as a language group holding interests in country, hold their interest quite remotely from the present claim area. Tindale's journal records an interview with George Dutton describing the Kungadutji group as occupying the "upper Buloo River" area. Dr Breen's interviews with George McDermott and King Miller in the 1960s record it as the area of Naryilco to Tibooburra. Dr Hercus and others in their study of Aboriginal Cultural Association with Mutawintji National Park entitled "Mutawintji", prepared for the Registrar, Aboriginal Land Rights Act 1983 (NSW), say much the same thing. Their report at para 4.4 says: All the evidence places Kungardutji in the area immediately east and north-east of Tibooburra and around the southern parts of the swampy areas around Lake Bulloo. They refer to other earlier sources to support that. That area is, of course, in the north-western part of New South Wales. 43 Nor did his Honour consider that the "critical step" in Dr Powell's reasoning - to tie the term Kungadutyi "to a language or language land holding group with country that was occupied by Punthamara and/or Wongkumara People" - was warranted on the evidence. His Honour further considered that another step in Dr Powell's reasoning - namely that Kungardutyi is "a tribal ascription rather than a general description of status as an initiated person" - was also not warranted on the evidence (at [86]). 44 His Honour concluded (at [106]) as follows: In my view, on the evidence, the views of Professor Trigger, Dr Sneddon and Mr Southon, based partly on Dr Hercus' analysis, that Kungadutji was more likely to be further south than the Boonthamurra claim area are more probably correct. I have discussed above the reason why I conclude that the Kungadutji People as a language group is an area well remote from the present claim area. (Emphasis added) That reiterated the view his Honour had expressed (at [84]). That finding placed Kungardutyi country well away from the Wongkumara claim area in relation to which Mrs King now claims, through the joinder application, to have acquired native title rights and interests through descent from Toney (as shown in Schedule "E"). 45 His Honour found (at [107]) that there was "no evidence" which could support a finding that by her parentage Toney acquired native title rights and interests in the Boonthamurra claim area. 46 On the basis of those findings Mansfield J answered the separate questions as set out above; finding that Clara and her son Frank Booth, and Toney, did not have native title rights or interests in geographical areas which extended into the Boonthamurra claim area (at [110]). Thus their descendants, the Booth/Fisher families, could not have acquired native title rights and interests in that area through descent from them. His Honour ordered the removal of Geoffrey Booth and Dennis Fisher as respondents to the Wallace proceeding.

[10]

Geoffrey Booth and Dennis Fisher as respondents in the Wongkumara application 47 In March 2008 Noelene Edwards and others commenced the Wongkumara application (QUD52/2008) on behalf of a native title claim group described as the Wongkumara People, in which they claimed to have native title rights and interests in relation to the Wongkumara claim area (Schedule "A") through descent from one or more of 15 named apical ancestors. The application does not name Clara, Toney and Frank Booth as apical ancestors. 48 In November 2008 Geoffrey Booth and Dennis Fisher became respondents to the Wongkumara application. They claimed to have native title rights or interests in relation to part of the Wongkumara claim area based on their descent from Clara, Frank Booth and Toney. To identify the area in relation to which they claimed to have traditional rights and interests they relied on maps contained in the affidavit by Mr Hoolihan. The maps that they relied upon show that they claimed to have native title rights and interests in relation to a substantial part of the Wongkumara claim area, including the Wilson River area and around Mount Howitt. 49 Mrs King filed an affidavit in support of that claim, which was in essentially the same form as her affidavit in the Wallace proceeding. She again claimed to have acquired traditional rights and interests in the Wilson River area, around Nockatunga. Geoffrey Booth filed an affidavit in which he said that the area around Nockatunga was in the southern part of the country in relation to which he claimed native title rights and interests, and he described that area as "part of our country that we associate with Granny Tony's people and which we call Kungardutji country". 50 In February 2016 the Wongkumara applicants filed an interlocutory application seeking the removal of Geoffrey Booth and Dennis Fisher as respondents. The application was listed for hearing on 8 March 2016. On 3 March 2016 Geoffrey Booth and Dennis Fisher withdrew as respondents.

[11]

As applicants in the Booth proceeding 51 Eight months later, on 4 November 2016, Geoffrey Booth, Mrs King, Stewart Williams and Veronica Booth, as applicants, commenced a native title determination application on behalf of a native title claim group described as the Kungardutyi Punthamara People, in which they claimed to have acquired native title rights and interests in relation to an area which overlapped the entirety of the Wongkumara claim area north of the Queensland/NSW border (Schedule "D"), based on their descent from Toby and Jenny (Toney's parents ), Alex and Maggie (Clara's parents), Nancy (the mother of Rosie Williams) and Davey and Betty (the parents of Durham Bob). 52 In Booth, handed down on 9 June 2017, Jagot J dismissed the proceeding on three grounds: (a) because the application was not properly authorised; (b) because it was an abuse of process; and (c) because it had no reasonable prospect of success within the meaning of s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA). 53 In relation to the abuse of process issue Jagot J noted that: (a) Clancy Booth had made a native title determination application in relation to the Wongkumara claim area in 1998, which was discontinued (at [46]); (b) Geoffrey Booth had made a native title determination application in relation to the same area in 2002, which was dismissed (at [47]); (c) in Wallace the Court found that Geoffrey Booth and Dennis Fisher did not have native title rights or interests in the Boonthamurra claim area, which area abutted the Wongkumara claim area, by reason of their descent from either Clara or Toney (at [48]); (d) Geoffrey Booth and Dennis Fisher were previously respondents to the Wongkumara application and then withdrew when challenged by the Wongkumara applicants (at [61]); and (e) the Booth proceeding concerned an area overlapping the entirety of the Wongkumara claim area above the Queensland/New South Wales border (at [62]). 54 Her Honour noted that the Booth applicants claimed to have native title rights and interests in the Wongkumara claim area based on their descent from Clara (who was an apical ancestor for the Yandruwandha/Yawarrawarrka native tile determination) and/or Toney, being the same apical ancestors that were the subject of the separate questions in Wallace, except for Stewart Williams who claimed descent from Nancy (his grandmother) and Clancy Booth (his grandfather). Her Honour said that nothing was shown in relation to Nancy's lineage other than to say that she was a relative of Frank Booth (at [62]). On the basis that Stewart Williams is the grandson of Clancy Booth I note that he is a descendant of both Clara and Toney. 55 Her Honour said that in Wallace Mansfield J concluded: (a) (at (45]-[49]) that the Booth family respondents' claim to have native title rights and interests by reason of their descent from Clara or Toney was not limited to the Boonthamurra claim area but extended into the Wilson River area which was on the border of the Boonthamurra, Wongkumara and Kullilli claim areas: Booth at [51]; (b) (at [86]-[87] and [98]) that Clara was Yandruwandha/Yawarrawarrka rather than Boonthamurra, and therefore Frank Booth and his lineal descendants were not Boonthamurra people with traditional rights and interests in the Boonthamurra claim area through Clara: Booth at [56]; and (c) (at [84], [100] and [105]-107]) that Kungardutyi People, "as a language group holding interests in country", held their interests in an area to the south and "well remote" from the Boonthamurra claim area, being an area in north-western New South Wales: Booth at [57]. 56 In Booth Jagot J did not accept the contention of Mrs King and Geoffrey Booth that in Wallace Mansfield J did not determine the status of apical ancestors outside of the Boonthamurra claim area (at [64]). In relation to the claim based on descent from Clara her Honour said that Mansfield J's finding that Clara was not Boonthamurra, and was instead Yandruwandha/Yawarrawarrka was an essential fact underpinning the decision that Clara and thus her descendants could not have traditional rights and interests in the Boonthamurra claim area. It was also consistent with the subsequent decision in Nicholls that Clara is an apical ancestor for the native title determination made in favour of Yandruwandha/Yawarrawarrka People. 57 In relation to the claim based on descent from Toney, her Honour said that Mansfield J's finding that Kungardutyi country was far to the south of the Boonthamurra claim area, and in north-western New South Wales underpinned his Honour's conclusion that descent from Toney could not found traditional rights and interests in the Boonthamurra claim area (at [66]). 58 Her Honour concluded (at [67]-[68]): Accordingly, to remove Geoffrey Booth and Dennis Fisher as respondents to the Boonthamurra proceeding, Mansfield J had to be satisfied that neither descent from Clara nor Toney gave Geoffrey Booth rights and interests in the Boonthamurra claim area. To reach the conclusion that Geoffrey Booth had no such rights and interests and thus was not a proper party to the Boonthamurra proceeding it was necessary for Mansfield J to find, as he did, that Clara was Yandruwandha/Yawarrawarrka whose country was to the west of Boonthamurra country and Tonie was Kungardutyi whose country was remote from Boonthamurra country, being in north-western New South Wales. But for these findings, including that the location of Yandruwandha/Yawarrawarrka and Kungardutyi country was nowhere near Boonthamurra country, there would have been no factual foundation for his Honour to have ordered removal of Geoffrey Booth and Dennis Fisher as parties from the Boonthamurra proceeding. These findings are inconsistent with Clara or Tonie being the source of any traditional rights and interests in the Wongkumara claim area to the immediate south of and abutting the Boonthamurra claim area. Despite this, in the Kungardutyi Punthamara application there is a single claim area which is to the immediate south-west of Boonthamurra country, overlapping the Wongkumara claim area, with traditional rights and interests said to be sourced from descent from Clara and Tonie. 59 Her Honour considered the Booth proceeding to be an abuse of process because it sought to re-litigate the issue as to whether Clara was a Boonthamurra person by re-branding the relevant Aboriginal society from Boonthamurra to Kungardutyi Punthamara. Her Honour said that was vexatious and oppressive to QSNTS, which was party in Wallace and in the Wongkumara application, and also to the Wongkumara applicants. Her Honour considered it would also bring the administration of justice into disrepute because the identity of Clara as a Yandruwandha/Yawarrawarrka person was essential to the orders removing Geoffrey Booth as a party and to the native title determination in Nicholls (at [65]). 60 Her Honour also found the Booth proceeding to be inconsistent with the way Geoffrey Booth put the case in Wallace in a number of respects. Her Honour said that in Wallace Geoffrey Booth gave evidence that the lands of Kungardutyi people were separate from those of Boonthamurra, and that Kungardutyi country was to the north-west of Boonthamurra land whereas Wongkumara land was to the south of Boonthamurra land. Ultimately he contended that Toney was Kungardutyi but on the basis that "Kungardutyi was a part of the Boonthamurra and Wongkumara identity so as to found rights and interests, via Tonie in the Boonthamurra claim area" (at [66]) Mansfield J rejected that contention on the basis that Toney was Kungardutyi but that Kungardutyi country was far to the south of Boonthamurra country, in north-western New South Wales, which finding underpinned his Honour's conclusion that descent from Toney could not found traditional rights and interests in the Boonthamurra claim area. 61 Her Honour held (at [69]-[71]): [69] As QSNTS put it, Geoffrey Booth as a representative of the Booth family conducted the Wallace litigation on one basis and, having failed, now seeks to conduct litigation for the Kungardutyi Punthamara People on an inconsistent basis. The combining of the formerly separate alleged identities of Kungardutyi and Boonthamurra creates a new society, never identified in Wallace, said to have rights and interests in relation to a new area of land, the effect of which is to eradicate the land to the immediate south of the Boonthamurra land which was recognised by Geoffrey Booth as Wongkumara country. This too is an abuse of process as it is oppressive of QSNTS and the Wongkumara applicants. In Wallace at [48] Mansfield J said that: …the general south-west area of Queensland has been the subject of extensive claims made over a long period of time. All of those claims (other than the ones presently on foot) have either been dismissed or discontinued. If there is to be another claim, it should have been brought earlier and in a timely manner. [70] Yet having failed in Wallace, Clara having been determined to be not Boonthamurra but Yandruwandha/Yawarrawarrka and an apical ancestor of the Yandruwandha/Yawarrawarrka native title claim group whose land is to the west, and Tonie having been determined not to be Boonthamurra but Kungardutyi whose land was to the south of and remote from the Boonthamurra land (that is, land in the north-western part of New South Wales), the Kungardutyi Punthamara applicants made a claim in November 2016 over the same claim area as the Wongkumara applicants (the Wongkumara applicants claim having been on foot since 2008), being land immediately to the south of the Boonthamurra land. This also involves both oppression to QSNTS and the Wongkumara applicants and, if permitted, would bring the administration of justice into disrepute. [71] Moreover, Geoffrey Booth was a party to the Wongkumara application and asserted interests in the Wongkumara claim area since 2008. When the Wongkumara applicants filed an interlocutory application in February 2016 seeking to challenge the existence of those interests in the Wongkumara claim area Geoffrey Booth withdrew as a party from the Wongkumara proceeding. Subsequently, the Kungardutyi Punthamara application was filed claiming rights and interests in the same area. As the Wongkumara applicants submitted, if it is the contention of the Booth family (and the Williams family) that apical ancestors have been omitted from the Wongkumara application then the proper way for that question to have been determined was as an issue in the Wongkumara proceeding. The making of an overlapping claim on behalf of a sub-set of a society, some eight years after the Wongkumara application was filed, is not a permissible way to resolve this issue. Geoffrey Booth had this opportunity to resolve his interests in the Wongkumara claim area in 2016 but declined to take that opportunity by withdrawing as a party from the Wongkumara proceeding before the Wongkumara applicants' interlocutory application to determine this issue was heard. For Geoffrey Booth now to be an applicant in the Kungardutyi Punthamara application involves oppression of QSNTS and the Wongkumara applicants which also would bring the administration of justice into disrepute. 62 Her Honour said (at [74]) that exercising "a broad merits-based judgment" it was apparent that the actions taken by Geoffrey Booth in the past had been by him as a representative of the Booth family generally. 63 Her Honour then turned to consider whether the Booth proceeding had a reasonable prospect of success pursuant to s 31A(2) of the FCA, and cited (at [77]) the principles set out by the High Court in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17], [22], [24], [25] and [60]. 64 Her Honour found (at [78]) that the application has no reasonable prospects of success because: (a) it was not properly authorised, as a matter of law, and it was not in the interests of justice for the proceeding to be heard despite the lack of proper authorisation; and (b) it involved an abuse of process which ought not be permitted. 65 Her Honour concluded that the factual circumstances which made the proceeding an abuse of process also meant that, independently from that doctrine, the proceeding had no reasonable prospects of success (at [79]-[80]), including because: (a) all of the available material indicates that the Kungardutyi Punthamara People are a sub-set of a broader regional society which did not vest in sub-groups any rights or interests in particular areas of land; (b) it is also not apparent how descent from Clara or from Toney could give traditional rights and interests in the Wongkumara claim area given the findings in Wallace, the determination in Nicholls and the lack of any fresh evidence in support of the Kungardutyi Punthamara application. The evidence in support of the Booth proceeding appeared to be a mere selection of evidence from that relied upon by Geoffrey Booth in Wallace, with references to Boonthamurra rebranded to be references to Punthamara Kungardutyi. On this basis as well her Honour concluded that the application should be summarily dismissed.

[12]

Mrs King's evidence 66 Mrs King adduced a series of historical records to establish that Toney was a Kungardutyi woman, the identity of Toney's children, that she was born at Mount Howitt in 1876-1880, and that she and Frank Booth had lived at Noccundra and Nockatunga until they were removed to Barambah Aboriginal Settlement in 1930. It is unnecessary to detail these records because it is accepted by the Wongkumara applicants that: (a) there is evidence to suggest that Toney was born at Mount Howitt Station in 1880/1881; (b) in 1938 the researchers Norman Tindale and Joseph Birdsell had recorded information from Aboriginal persons then living at Woorabinda and Brewarrina Aboriginal Settlements (the Tindale records) in which Toney was identified as Kungardutyi; and (c) Mrs King is a descendant of Toney. 67 In summary, Mrs King deposed that: (a) she was told by her father, Bill Booth, that his mother Toney and her people came from the Wilson River-Cooper Creek region of south-west Queensland, which area was their homeland; (b) she was told that her country was the same as Granny Toney's country and Granny Clara's country which includes Mount Howitt, Nockatunga and the Wilson River-Cooper Creek area; (c) she grew up hearing her father and other relations speak Punthamara, and was told this was her family's language because it was their ancestor's language. She now understands that her family's language is alternatively known as Punthamara, Wangkumara or Kungardutyi, which language belongs in the Wilson River-Cooper Creek region, which her father told her was Toney's country; and (d) although she lives away from the Wilson River-Cooper Creek region she has a continuing connection with it and has sought to "keep in touch" with the country and to uphold traditional laws and customs. 68 Mrs King described her role in the Booth family's earlier claims to have native title rights and interests in the areas outlined above as follows: (a) she supported Geoffrey Booth and Dennis Fisher as respondents in the Wallace proceeding because the Boonthamurra claim covered part of the country which she understood was her country. She was "astonished" by the decision in Wallace to the effect that Toney's country was in north-west NSW, as that was fundamentally different to what she had always been told by her father, uncles and aunts; (b) she knew that the Wongkumara claim went over Toney's country and so, together with Geoffrey Booth and others, she commenced the Booth proceeding in order to protect their native title rights and interests. She understood that the Court dismissed the Booth proceeding because of the decision in Wallace and other reasons; and (c) in 2018 she became aware of new evidence in the Hercus Declaration. Although that evidence did not change anything for her because she always believed where her country's boundaries were, the new evidence came from an expert and confirmed her previously stated position.

[13]

Stancey Booth's evidence 69 Mrs King's sister, Stancey Booth, confirmed the family history as stated by Mrs King. She described herself as a member of the Kungardutyi Punthamara People through descent from her grandmother Toney and her father Bill Booth. She said that her family belongs to the Wilson River-Cooper Creek region of south-west Queensland and that when she was growing up her father "would always talk about Nockatunga" and say that "his country was west of the Grey Range". The Hercus Declaration 70 Mrs King annexed the Hercus Declaration, made 15 December 2017, to her first affidavit. It is significant to her argument and therefore appropriate to set it out in some detail. Dr Hercus stated: (a) it is important to note that historical records from the time record that 'Kungardutyi' is not a tribal name. It is simply a noun meaning that these people have been initiated through the rites of circumcision, as all of the Wilson River men, Wangkumara and Punthamara, were. But the practice was not restricted to those tribes and it had been gradually spreading eastward in the 19th century (at [1]-[3] of the Hercus Declaration); (b) a draft map made by Tindale in 1938 and a later map he made in 1974 show the circumcision line; being the line where the easterly movement stopped and the whole system broke down when Europeans took the land. The Hercus Declaration reproduced a portion of those two maps. Dr Hercus said that those maps show that the country that Tindale labelled 'Kungardutyi' is to the west of Mount Howitt and a long way from north-western NSW. Tindale associated the term 'Kungardutyi' with an area he described in 1974 as "Cooper Creek north of Durham Downs; east to Mount Howitt and Kyabra Creek, northwest to near Lake Yamma Yamma" (at [11]). (c) the people who would have been most anxious to stress that they practice circumcision were those who lived in close proximity to those who did not. Some people who lived in an area of far north-western NSW were mentioned as 'Kungardutyi', presumably to reinforce the fact that they were circumcised. That is why information about that group was included in a report titled "Mutawintji Aboriginal Cultural Association with Mutawintji National Park" (the Mutawintji report) prepared by Dr Jeremy Beckett, Dr Sarah Martin and Dr Hercus (at [6]). (d) "[t]he available evidence indicates that the use of the term 'Kungardutyi' by or for Wangkumara-Punthamara speakers as an alternative term for their identity or their language was probably a widespread practice and was not confined to one specific local group of speakers. This means that there is no reason that Wangkumara-Punthamara speakers should not call themselves also or be identified by others as 'Kungardutyi the circumcised ones' in other parts of the country associated with these speakers". That is what happened in 1938 when Tindale interviewed Frank Booth (at [10]); (e) it was likely that Tindale was "not aware that the term 'Kungardutyi' is a 'shifter'term and that in particular contexts, was widely used in former times to distinguish the circumcised from the non-circumcised or as an alternative name for a particular language associated with south-west Queensland or for speakers of this language." (at [11]); and (f) that her post-Mutawintji research confirmed that "the use of the terms Punthamara or Wangkumara or Kungardutyi is context-dependent, and that, with respect to distinguishing a particular south-west Queensland Aboriginal language or a language-named identity, the terms Wangkumara and Punthamara are not mutually exclusive (at [12]); 71 Dr Hercus concluded as follows (at [13]-(14]): The records made by Norman Tindale and Joseph Birdsell in 1938 pertain to a Kungardutyi group whose members include the family of Frank Booth and his wife Tonie. This is the Kungardutyi group that Tindale locates within the Wilson River-Cooper Creek region on the maps referred to above. It is clear from the Tindale records that this location is based on information supplied by Frank Booth and Tindale's analysis of the written records that were available to him for his consideration. When these records are considered in conjunction with other records, in particular the linguistic records (Gavan Breen's work with Frank Booth and Frank Booth sister Alice Millar, Nils Holmer's work with Frank Booth's sister Florrie Gray and Janet Matthews' work with Frank Booth's son, Bill Booth), it is clear that this particular Kungardutyi group spoke a language that was identified by most of the speakers as 'Punthamara' and by some as 'Wangkumara' or 'Kungardutyi'. That is the language known today as 'Wangkumara-Punthamara' or 'the Wilson River language', speakers of which include members of the Booth family, members of the Ebsworth family and others, who have associations with south-west Queensland and north-west New South Wales. Some of my findings of my post Mutawintji research are set out in my article "Language and Groupings of Wangkumara and Punthamara People". In this article I refer to Kungardutyi 1 and Kungardutyi 2. Those are clearly not the same group: Kungardutyi 1 is a group in the Cooper-Kyabra region and Kungardutyi 2 is a group located in north-west NSW group mentioned in the Mutawintji article. The Tindale records about Kungardutyi indicates that my article needs to be revised to include a Kungardutyi 3 group. (Emphasis added.)

[14]

Dr Powell's evidence 72 Dr Powell is an expert anthropologist engaged by Mrs King. She has had a long involvement in proceedings in which the Booth family have claimed to have native title rights and interests in the relevant areas. During work she undertook in 2000-2004 in relation to the Wongkumara application she compiled some information about Mrs King's antecedents and related persons. Then, from 2008 she conducted further research in relation to Mrs King's antecedents and related persons, including by reviewing two reports prepared in 2010 and 2011 by Michael Southon for the Boonthamurra application. Dr Powell affirmed two affidavits in the joinder application in which she lists and annexes her earlier relevant reports. 73 By reference to various historical records Dr Powell said that Toney was born at Mount Howitt in 1876 or 1880 of two Aboriginal parents named Toby and Jenny. She said that her genealogical research confirmed the family history provided by Mrs King including that Mrs King is descended from Toney. That evidence is uncontentious. 74 Dr Powell considered it significant that Toney was born at Mount Howitt Station because: (a) it located Toney and her parents in that area in the period 1876-1880 which is shortly after the establishment of effective sovereignty of the State of Queensland in the region; (b) it established that Toney's parents were born in the pre-sovereignty era; (c) it showed that Toney was born more probably than not within or near the region that Mrs King and other descendants said they were told was her parent's country; and (d) Mount Howitt is associated in archival records dating from 1880 with the Koonandahburry (or Kurnandaburi) tribe whose language Dr Breen, an expert linguist, said in a 2015 report titled "Report on behalf of the Wongkumara Claimants" was "that of the Wilson River". 75 Dr Powell also relied on historical records which in her opinion show that Toney had a long association with the Wilson River-Cooper Creek region, being: (a) a 1905 letter by Mr Davis which described Toney as a "native of Mount Howitt", and the Register of Permits for the Employment of Aboriginals kept by the Protector of Aboriginals, Nocundra for 1919 which recorded her as "a native of Nockatunga". Mount Howitt and Nockatunga are pastoral properties located within the Wilson River-Cooper Creek region and both are located in the northern part of the Wongkumara claim area; (b) the same Register of Permits for the Employment of Aboriginals recorded Toney as one of only six Aboriginal persons out of 38 Aboriginal persons registered as employed under a permit at Nockatunga Station who are recorded as being 'native' to that station rather than elsewhere. (c) Toney's marriage certificate and the birth and death certificates of her children from her unions with Edward Davis and Frank Booth which show that during her lifetime she lived at Mount Howitt, Nappa Merrie, Kihee, Noccundra and Nockatunga. Dr Powell considered the records indicated that Toney had a lifelong association with the Wilson River-Cooper Creek region, notwithstanding that she was forcibly removed from the area in 1930. 76 Dr Powell relied on historical records in relation to Toney, Frank Booth and Bill Booth (Mrs King's father) which in her opinion associated them with 'Kungardutyi' and 'Punthamara'. She said that in 1938 Tindale recorded Toney as Kungardutyi, her son, Bill Booth (then 27 years old ) as Kungardutyi, and her husband Frank Booth as Kungardutyi. Dr Breen recorded Frank Booth as a Bundhamara (Punthamara) speaker. Frank Booth told Dr Breen that Bundhamara and languages named Wannggumara (Wangkumara) and Gungagudji (Kungardutyi) were "the same". In Dr Powell's opinion whether the term 'Kungardutyi' or 'Punthamara' is used is context-dependent, and her research also located records that associate 'Kungardutyi' with 'Wangkumara'. 77 On the basis of her research Dr Powell said that Frank Booth and his family spoke Punthamara, his sister Alice Miller spoke Wangkumara, Frank Booth learned Punthamara at Durham Downs and "spoke it in the Wangkumara way", Frank Booth's younger sister Florrie Gray spoke Punthamara, Clancy Booth (Bill Booth's brother) identified as Punthamara, and Jack O'Lantern who was the adopted son of Frank Booth spoke Wangkumara. 78 Dr Powell considered Punthamara had the broadest distribution of the three language names Kungardutyi, Punthamara and Wangkumara. In her opinion Punthamara or one of its accepted variants is associated in archival records with places within the northern part of the Wongkumara claim area, including Wilson River, Cooper, Mount Howitt, Cooper Creek south of Mount Howitt, Nockatunga, Conbar, Innamincka, Chaselton, Oontoo, Tinapera, Durham Downs, and Naryilco, and also beyond the Wongkumara claim area. She said that in some records or research (for example Tindale 1940, 1974) those three names are used to identify territorial groups or tribes. In others as summarised by Dr Breen in 2015 they are names for languages as well as for Aboriginal tribes or groups. 79 Dr Powell considered the Hercus Declaration to be significant in that it contains fresh information about Dr Hercus' research and insight into the historical records about the term Kungardutyi with special reference to the Kungardutyi that Tindale associated with the Mount Howitt-Cooper Creek area. She also regarded the Hercus Declaration as significant because it refers to research that Dr Hercus undertook in 1999 when she interviewed Clancy Booth and other members of the Booth family, which research was not available or considered by the experts in Wallace. 80 She noted that the Hercus Declaration said that: (a) in 1938 Tindale identified the family of Frank Booth and Toney as Kungardutyi and located them in the Wilson River-Cooper Creek region; (b) "the country that Tindale actually labelled as Kungardutji on his 1974 map is to the west of Mount Howitt and a long way from north-west NSW; (c) Dr Breen recorded from Frank Booth, George McDermott and Alice Miller that Kungardutji was the name of a language that was the same or almost the same as the language that he called the "Wilson River language", which Dr Hercus called the Wangkumara-Punthamara language; and that Dr Breen mentioned that a 1965 recording of 'Kungkatutyi from Bob Parker was in a language that was identical or almost identical to Wangkumara and Punthamara; and (d) that the use of the term 'Kungardutji' by or for Wangkumara-Punthamara speakers as an alternative term for their identity or their language was probably a widespread practice and was not confined to one specific local group of speakers. There was no reason why Wangkumara-Punthamara speakers should not call themselves also or be identified by others as 'Kungardutyi the circumcised ones' in other parts of country associated with these speakers. 81 Dr Powell said that the Kungardutyi 3 group to which Dr Hercus referred is the group that Tindale represented in the maps set out in the Hercus Declaration, which drew on information provided at the time by Frank Booth and members of his family. In her opinion, Dr Hercus clearly regarded the Kungardutyi 3 group as a valid group, whose members included the family of Frank Booth, who Dr Hercus knew from her own research identified as Punthamara and who were speakers of a language that she identified as Wangkumara-Punthamara'. This group was not the same as the Kungardutyi 1 and Kungardutyi 2 groups earlier identified by Dr Hercus. In Dr Powell's view the Kungardutyi 3 group includes Frank Booth and others who were interviewed by Tindale in 1938, and whose descendants were interviewed by Dr Hercus in 1999 who were recorded as identifying as Punthamara, which is the language Dr Hercus identified as the Wilson River Wangkumara-Punthamara language. 82 In Dr Powell's opinion a "substantial portion" of the area that Dr Hercus associated with the Kungardutyi 3 group falls within the northern part of the Wongkumara claim area and includes the areas around Mount Howitt and the Wilson River-Cooper Creek area. 83 Dr Powell did not though agree with Dr Hercus' statement that Kungardutyi is not a "tribal name" and is "simply a noun meaning that these people have been through the rights of circumcision, as all the Wilson River people were." She accepted that the term "Kungardutyi" has the meaning "circumcised" but found evidence that the term is not confined to a named area and people located in northern New South Wales, as suggested in the Mutawintji report. In her opinion Kungardutyi is the name for a language or group or groupings associated with places or areas in Queensland, including places or areas that are within the Wongkumara claim area, as well as for a social category meaning "circumcised". 84 Dr Powell was, as I have said, an expert witness for the Booth family in Wallace and she also undertook research for them when Geoffrey Booth and Dennis Fisher were respondents to the Wongkumara application. She made it clear that she considers the decisions in Wallace and Booth to be wrong, including by stating that the Hercus Declaration has "implications for" those decisions, and that those decisions did not "properly consider" Toney's location in south-west Queensland and her association with Kungardutyi.

[16]

Whether Mrs King made out a prima facie case 87 Mrs King contends that she put on sufficient evidence to demonstrate that she has a prima facie case that she has native title rights and interests in the Wongkumara claim area, which interests may be affected by a determination of native title in the proceeding. 88 I summarised the evidence of Mrs King and her sister in the joinder application (at [67]-[70]), the Hercus Declaration (at [71]-[72]) and the evidence of Dr Powell (at [73]-[85]), and it is unnecessary to reiterate that. 89 The Wongkumara applicants and QSNTS deny that Mrs King made out an arguable case. They submitted that the evidence does not provide a factual basis sufficient to support the native title rights and interests Mrs King claims to have in the Wongkumara claim area, which interests may be affected by a determination of the Wongkumara application, even on a prima facie basis. In particular, QSNTS noted that Mrs King's claim to have native title rights or interests is based in descent from one apical ancestor, Toney, a Kungardutyi person, and argued there is no evidence of any Kungardutyi society. It relied on the evidence of Geoffrey Booth in the Wallace proceeding where he appeared to concede that he did not know of any Kungardutyi person other than Toney (at T152). QSNTS said that if there is no Kungardutyi society with rights or interests in land than Mrs King cannot have such native title rights or interests. QSNTS also noted Mansfield J's finding in Wallace (at [85]-[86]) that Dr Powell's reasoning that Kungardutyi is a tribal ascription rather than a general description of status as an initiated person was not warranted on the evidence. That contention also fits with the finding in Booth that the available evidence indicates that the Kungardutyi Punthamara People are a sub-set of a broader regional society which did not vest in sub-groups any rights or interests in particular areas of land (at [79]). 90 The submissions made by QSNTS in this regard have some force, but establishing a prima facie case is not a high bar. If not for the findings in Wallace and Booth I would be satisfied that the evidence is sufficient to show that Mrs King has made out an arguable case, but the question as to whether Mrs King has done so is bound up in the issue as to the effect of the findings made in Wallace and Booth. It is convenient to proceed on the assumption that Mrs King has established a prima facie case and turn to deal with the parties' submissions in relation to the effect of the judgments in Wallace and Booth.

[18]

Mrs King's submissions 92 Mrs King denied that the joinder application is an attempt to re-litigate the claims to native title rights and interests made by herself and/or other members of her family which were previously rejected by the Court and denied that it is an abuse of process. She contended that: (a) although in Wallace she provided an affidavit and gave evidence in support of the claim made by her cousins Geoffrey Booth and Dennis Fisher, she was not a party to that case; (b) in Wallace she gave evidence that she has native title rights and interests in relation to the Wilson River area, including the country around Nockatunga and Noccundra, which area largely fell outside the Boonthamurra claim area. The decision in Wallace related to the Boonthamurra claim and did not concern the Wongkumara claim area which is the subject of the joinder application; (c) the findings in Wallace were based in the lay evidence and expert evidence before the Court, which was (and could only be) the expert evidence available at that time; (d) in the joinder application she has adduced fresh evidence through the Hercus Declaration and from Dr Powell in regard to the relationship between Kungardutyi and Punthamara People and the geographical location of Kungardutyi country. On the basis of the fresh evidence the findings in Wallace and Booth are unreliable and should not be adopted, citing Fulton v Northern Territory of Australia [2016] FCA 1236 at [46] (White J). (e) the findings in Booth that the Kungardutyi Punthamara native title determination application was an abuse of process and had no reasonable prospect of success, were based on the findings in Wallace (which the Court should treat as unreliable); and (f) through the joinder application she now seeks to protect her native title rights and interests from erosion, dilution or discount by opposing a determination of native title in favour of the Wongkumara People. 93 Mrs King also put on post hearing submissions in which she contended that: (a) if Geoffrey Booth acted as her privy in interest in the Wallace litigation he represented the Booth family in relation to "the claim the subject of that proceeding, but not with respect to their individual claims", citing Timbercorp Finance Pty Ltd v Collins and Tomes [2016] HCA 44; (2016) 259 CLR 212 (French CJ, Kiefel, Keane and Nettle JJ at [49], [50], [53]; (b) Mrs King had limited control of the Wallace proceeding and in such circumstances it would be unjust to bind her to his actions, citing Timbercorp at [54]; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [39] (French CJ, Bell, Gageler and Keane JJ); (c) the decision in Wallace decided separate questions which determined the Boonthamurra native title determination application, between the parties to that litigation: Tomlinson at [20]; and (d) Mrs King is not seeking to re-litigate the subject matter of the Wallace litigation. Although that judgment concerned her apical ancestor, Toney, the decision was about a claim area which is not part of the Wongkumara application. 94 Mrs King contended that, although she is a member of the Booth family, the Court should approach the joinder application independently of the past activities of Geoffrey Booth, including that she should not be disadvantaged because Geoffrey Booth withdrew from being a respondent to the Wongkumara application when challenged by the Wongkumara applicants. 95 She noted that s 86 of the NTA permits the Court to receive into evidence the transcript of evidence in another proceeding and to draw any conclusion of fact from that transcript that it thinks proper; and to adopt the judgment of the Court in another proceeding. She argued, and it is uncontentious, that while s 86 permits the Court to adopt the findings from another proceeding, it does not bind the Court to do so. 96 Mrs King relied on the decision in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 (McKerracher J) in which all of the parties relied to some extent on the evidence and/or reasons in the judgment of Lindgren J in Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1. In Yilka the State contended that the Court should adopt the findings in Wongatha, that it contained findings on important issues which were fatal to any finding in favour of the Cosmo applicant group or its successor the Yilka applicant (at [2279]), and that even if the Yilka applicant's case was distinguishable from the case advanced in the Wongatha proceedings, the Yilka claim was an abuse of process as it presented issues fundamentally akin to the issues in the Wongatha claim and/or issues which were open to be raised, and ought to have been raised, in the Wongatha proceeding, relying on Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ): Yilka at [2236]. 97 Mrs King noted that McKerracher J declined to adopt the findings in Wongatha. His Honour said (at [297]-[298]): The threshold difficulty is that I do not have the great bulk of the evidence on which the findings [in Yilka] were made. I am certainly not in a position to assess the credibility of the evidence given by witnesses in relation to those matters. It would be unorthodox to adopt another judge's findings in lieu of reaching one's own findings where to do so is possible. Of course, this leaves the abuse of process argument open and it, at one level, enhances it. In my view, the weight to be accorded to the careful findings of Justice Lindgren is to have regard to the process of careful reasoning that his Honour reached over a long period of time. But I have different evidence before me in relation to different persons in a different claim area. The evidence is considerably more extensive. There were a number of persons who did not give evidence in the Cosmo proceedings and, in some cases, were not even claimants in the Wongatha or related proceedings. There was gender restricted evidence, including evidence from senior law men. There were views of Minnie Creek and numerous other sites on the Claim Area. There were demonstrations of butchering and cooking kangaroos and the display of other items of bush tucker. In short, there were numerous aspects of this case which were not before Justice Lindgren. I do not intend, therefore, to adopt any findings made by Justice Lindgren, but will reach my own conclusions. I will, without hesitation, give weight and respect to the reasoning process adopted by Justice Lindgren in the Wongatha and Cosmo claims to the extent that it may guide an approach to be taken in resolution of contested issues in this case. 98 Mrs King further argued that McKerracher J rejected the State's contention that the applicant's claims involved an abuse of process, and said (at [2474]): In summary and conclusion, neither the specific doctrines, nor the general notion of abuse of process can operate in relation to persons who are not parties to previous litigation. Such parties cannot be precluded from seeking to have their native title rights and interests recognised in accordance with the provisions of the NTA. Thus, any of the doctrines on which the State relies cannot have operation in respect of any of the following persons who were neither part of the Wongatha nor the Cosmo native title claim groups. His Honour also said (at [2477]): In relation to both the Yilka applicant and the Sullivan applicant, the defences raised by the State in this chapter [which concerned abuse of process] cannot succeed. In my view, in the present case, no departure from the ratio in Wongatha is required in permitting the Yilka claim and the Sullivan claim to proceed and be determined on its substantive merits. There is no risk of conflicting judgments and there being no suggestion of usage of the judicial process for an improper purpose, there would be manifest unfairness in the merits of the claim not being determined. 99 Mrs King accepted that the evaluation of the evidence by Mansfield J in Wallace and by Jagot J in Booth is relevant to the joinder application, and that in the joinder application it was appropriate for the Court to give weight and respect to their Honours' reasoning processes. She argued however that she has adduced fresh evidence in the joinder application based on subsequent research and it would be inappropriate to adopt the findings in those decisions. Instead, the Court should reach its own conclusions. 100 In relation to the finding in Wallace (at [84] and [106]) that Kungardutyi country was further south than and well remote from the Boonthamurra claim area, in north-western New South Wales, Mrs King contended that finding is unreliable because: (a) in the Hercus Declaration, Dr Hercus said that the Tindale records from 1938 pertain to a Kungardutyi group whose members include the family of Frank Booth and his wife Toney, which group Tindale located within the Wilson River-Cooper Creek region, who spoke Wangkumara-Punthamara or 'the Wilson River language'; (b) Dr Hercus also said that her 2001 article "Language and Groupings of Wangkumara and Punthamara People" needed to be revised, because it only referred to two groups of Kungardutyi people, being Kungardutyi 1 (a group in the Cooper-Kyabra region), and Kungardutyi 2 (a group located in north-west NSW). She said that having regard to the Tindale records her article should be revised to also include a Kungardutyi 3 group, being the group associated with Frank Booth and Toney; and (c) in Dr Powell's opinion the Hercus Declaration had "implications" for the judgments in Wallace and Booth, and meant that the issues of Toney's location in south-west Queensland and her association with Kungardutyi were not "properly considered" in Wallace nor in Booth. 101 In relation to the findings in the Booth proceeding, Mrs King contended that those findings are based on the findings made in Wallace, which are unreliable for the reasons stated. She also noted that in concluding that the Booth proceeding had no reasonable prospect of success, Jagot J referred (at [79]) to a "lack of any fresh evidence" in support of the application since the decision in Wallace. She argued that in the joinder application the position is different as she has adduced fresh evidence to show that the Kungardutyi Punthamara People have a long-standing association with the Wilson River-Cooper Creek region through descent from Toney. Mrs King argued that the Hercus Declaration together with the evidence of Dr Powell, challenged the conclusion: (a) in Wallace, that Toney and her Kungardutyi people are from a region well to the south of and remote from the Boonthamurra claim area, in north-western New South Wales; and (b) in Booth that Kungardutyi country is in northern New South Wales, and thus could not be the source of native title rights or interests in the Wongkumara claim area, which is immediately to the south and abutting the Boonthamurra claim area. 102 Mrs King submitted that the joinder application is not an abuse of process because, in summary: (a) if the joinder application is allowed there is no risk of conflicting judgments as the Court is now presented with fresh expert evidence from research conducted after Wallace and Booth were handed down; (b) declining to adopt the findings made in Wallace and Booth would not impact on the "principle of finality of judicial determination and public confidence in the administration of justice": see State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 (64,077) at 81-423, [25]; (c) allowing the joinder application will not bring "the administration of justice into disrepute": Tomlinson at [25]; and (d) the joinder application does not make use of the judicial process for an improper purpose. Mrs King said that she has consistently claimed to have native title rights and interests in the Wilson River area through her descent from Toney, and she cannot properly be said to be abusing the processes of the Court. She contends that the joinder application is a just an honest and "possibly final" attempt to protect her native title rights and interests in the Wilson River area which were passed down to her by descent from Toney through her father. 103 In post hearing submissions Mrs King argued that the dismissal of the Booth proceeding on the basis that it had no reasonable prospects of success was interlocutory rather than final, citing Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 at [14], [23] (Finkelstein J), [57] (Rares J) and [173]-[174] (Gordon JJ). She submitted that the summary judgment in Booth should be understood as interlocutory in nature because it did not decide "all claims of all parties", citing Gordon J in Jefferson Ford at [174]. She argued that while the summary judgment concluded the fate of that proceeding it did not conclude the rights of the parties inter se, citing Rares J in Jefferson Ford at [53] where his Honour cited Gibbs J in Hall v Nominal Defendant (1966) 117 CLR 423 at 440. 104 Mrs King sought to rely on the decision in Jones v Insole [1891] 64 LTR 703 in which Lindley LJ and Kay LJ found that an order striking out a statement of claim on the ground that it discloses no cause of action was an interlocutory rather than a final order, and in deciding whether to grant an extension for leave to appeal held that the plaintiff should issue a new writ. By analogy Mrs King argued that, because the judgment in Booth was interlocutory, the Court does not need to set aside or overturn the judgment in order to allow the joinder of Mrs King. 105 On Mrs King's argument, in Booth there was no positive or negative determination of native title rights and interests claimed in relation to the Kungardutyi Punthamara claim area, and there is no judgment in rem. On this argument, while the judgment meant the Booth proceeding could not continue it did not finally dispose of the native title rights and interests of the claimants in their native title claim in relation to that area. 106 Mrs King further submitted that, although a claimant's native title claim has been struck out in one matter, that claimant does not automatically cease to be a party with native title rights and interests in another matter where they are seeking to protect their native title rights, citing Kokatha People v State of South Australia [2005] FCA 836 at [10] (Mansfield J). She argued that her involvement in previous applications to protect her native title rights "may be relevant, but cannot be decisive", and her application should be "assessed by reference to the circumstances of the present application and is not concluded by those pertaining in [her] earlier applications", citing Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [155] (Mansfield J).

[19]

The decision in Wallace 107 In Wallace the Court was required to determine whether, through descent from either Clara or Toney, the Booth family respondents had acquired an entitlement to native title rights and interests in relation to the Boonthamurra claim area, which abutted the Wongkumara claim area. It is evident from the judgment that Mansfield J understood the geographical locations which were the subject of the evidence. 108 His Honour noted (at [19]) that the townships of Nockatunga and Noccundra are more or less on the boundary of the Wongkumara and Kullilli claim areas, and (at [47]) that the Wilson River area overlaps the Boonthamurra, Wongkumara and Kullilli claim areas. His Honour said (at [17]-[20], [22]): [17] So, the claim area is surrounded by a number of claims. Starting in the north-east, and moving anti-clockwise, they are the Bidjara, Mithaka, Wongkumara, Kullilli and Mardigan Peoples claims. [18] The focus of the evidence was in the southern central area of the claim area where the Wilson River flows from the Grey Range south west. In that area, and as the Wilson River flows south west more or less where the Kullilli and Wongkumara Peoples claims touch, there are a few more features of the geography to mention. [19] In about the centre of the southern section of the present claim, is the township of Eromanga. South of the southern point of the present claim and along the Wilson River as it flows south-west to join with the Cooper Creek, are the townships of Nockatunga (in many documents spelled as Noccatunga) about 35 km south of the southernmost point of the claim area and Noccundra about a further 20 km or so south of Nockatunga. As noted, those two towns are more or less at points where the Wongkumara and the Kullilli Peoples claims have a common border. [20] In the course of the evidence, other station properties were mentioned. Durham Downs is a station on the Cooper Creek in the Wongkumara People's claim east and a little south of Arrabury station, and on the western side of the Cooper Creek. It is north of the point where the Wilson River joins into the Cooper Creek catchment area. … [22] Mount Howitt Station appears to be at a point about where the present claim towards its south-western side and the Wongkumara People claim have a common border. It is to the east of Cooper Creek, and to the west of a smaller range within the present claim area called the Cooke Range. (Emphasis added.) 109 It is also evident that his Honour understood that the Booth family respondents claimed to have native title rights or interests in areas that overlapped the Boonthamurra and Wongkumara claim areas, in particular the Wilson River area which includes the towns of Nockatunga and Noccundra, and around Mount Howitt. 110 I have previously set out the evidence given by Mrs King, Ivy Booth, Frank Booth and Dennis Fisher in Wallace. In summary Mrs King said that she was Boonthamurra and that her people referred to themselves as the 'Wilson River Clan' being people who lived around the Nockatunga and Noccundra area. Ivy Booth said that Clancy Booth always said that he was Punthamara and that his country was the Wilson River area. Geoffrey Booth said he was told by his father Clancy Booth that his grandfather, Frank Booth, was from Noccundra and Nockatunga, and that around "that way" was Frank Booth's country. He said that Nockatunga was "the main feature and central to his country". Mansfield J said that Geoffrey Booth's and Ivy Booth's evidence focused on the Wilson River area. The basis of the Booth family's assertion of native title rights and interests in the Wallace proceeding was that they were Boonthamurra people. In cross examination Mrs King acknowledged that "the Wilson River Clan", of which she said she was a member, was just another description for Boonthamurra (T:228). 111 It was against that background that the areas in which Booth family respondents' claim to have traditional rights and interests were identified. Mansfield J recorded their claim as follows (at [45]-[46]): As the issues have emerged, the claim is not simply about whether the Booth/Fisher families are properly Boonthamurra People by their apical ancestors but about the location of Boonthamurra country. When the order for the determination of particular questions was made, it was anticipated that if the deceased person, Clara and her son Frank Booth were found to be Boonthamurra People, or alternatively if Frank Booth's wife Toney was Boonthamurra, that would be followed by an order that they should be added to the apical ancestors of the Boonthamurra People, and so the Booth/Fisher families would be recognised as members of the Boonthamurra People. In the course of submissions, the issue did not emerge in that way Counsel for the Booth/Fisher families indicated that the Booth/Fisher families described themselves as part of the Wilson River group, involved largely through Clara in only the southern section of the Boonthamurra claim area, but they also claimed native title rights and interests over parts of the Wongkumara People claim area and the Kullilli People claim area. In addition, in respect of the alternative apical ancestor known as Tobey and/or Jenny, or her daughter Toney (but on the evidence more directly through Toney), the proposition was put in argument that the Kungadutji community had become synonymous with and part of the Boonthamurra People, but the two families' particular interests through Toney were in the western section only of the Boonthamurra claim area towards Cooper Creek area, and probably west of the Cooke Range. (Emphasis added.) 112 That is, the Booth family respondents claimed that they were Boonthamurra People and had native title rights and interests in part of the Boonthamurra claim area. However, they claimed that Boonthamurra country actually extended further west and south west from the Boonthamurra claim area into the eastern part of the Wongkumara claim area so as to include, amongst other areas, a greater part of the Wilson River area and the area around Mount Howitt. 113 Following a careful consideration of the lay and expert evidence Mansfield J did not accept that the Booth family respondents had native title rights and interests in the Boonthamurra claim area. In relation to the claim based on descent from Toney his Honour said at [103]-[109]: [103] In relation to Toney, who was Frank Booth's wife and so Clara's daughter-in-law, Dr Powell expressed the view that descent from Toney could provide the requisite connection to Boonthamurra country. It is her view that the Kungadutji as an identity label was superseded by Boonthamurra and Wongkumara, and on the basis of Toney's association with Mt Howitt, one can infer that she was Boonthamurra. [104 ] Mr Southon disagreed with this view, he did not accept that the Booth/Fisher family had connections to Boonthamurra country through grandmother Toney. He referred to evidence putting Kungadutji much further south than Mt Howitt. Dr Hercus placed Kungadutji near Tibooburra, which is a long way south. He also referred to other records that place Kungadutji in the Nockatunga area. In his view, it is unclear as to what the label Kungadutji as applied to Toney means. Professor Trigger, like Mr Southon, placed reliance on Dr Hercus' analysis that Kungadutji country is to the south. He also queried the proposition that even if Toney acquired native title rights that somehow extended to the east/south-east Wilson River Area (overlapping with the southern portion of the Boonthamurra claim area), that those rights could be inherited by her descendants. I note that the oral evidence referred to largely focused on that area, but there was some suggestion that the family interests extended to the upper western section of the present claim area, about where Toney was born. Dr Sneddon agreed with Professor Trigger's view. [105] It is, on the evidence, clear Toney was identified as being of the Kungadutji tribe at the time of Tindale's expedition. The issue is whether the Kungadutji area is part of the Boonthamurra country. Dr Powell agreed that her view was based on limited knowledge. She identified "various old records" which identified Kungadutji to be associated with areas that overlap with the western part of the Boonthamurra claim area. Her notion of Kungadutji being an identity label that was subsequently superseded by Boonthamurra and Wongkumara, largely relies on linguistic analysis. [106] In my view, on the evidence, the views of Professor Trigger, Dr Sneddon and Mr Southon, based partly on Dr Hercus' analysis, that Kungadutji was more likely to be further south than the Boonthamurra claim area are more probably correct. I have discussed above the reason why I conclude that the Kungadutji People as a language group is an area well remote from the present claim area. [107] For those reasons, I do not think that the identification of Toney as Kungadutji by Tindale advances the claim of the Booth/Fisher families to be Boonthamurra. There is, in addition, no evidence to support the proposition that there is any acquisition of rights to country acquired by birth place irrespective of lineal acquisition of rights (either patrilineal or matrilineal), and there is no evidence which can support any finding that by her parentage Toney acquired rights in the Boonthamurra claim area. [108] Geoffrey Booth said in his oral evidence that he did not claim to be Kungadutji as he was following his father's line, but had revised his position to also claim to be Boonthamurra through his grandmother. He also agreed that he had positively disavowed Kungadutji association in the past. He acknowledged, as I noted when referring earlier in these reasons to his evidence, that in any event the country associated with his grandmother's birthplace largely extended westwards from Mr Howitt Station in the way referred to. Dennis Fisher's evidence made only passing reference to his "grandmother Toney's country" and had learnt of the putative connection to the present claim area only when in his 40s and he had not been taught anything about it as a child or as a young man. It was not put forward to Mr Hoolihan as a potential basis for an interest in the present claim area, or indeed in any Boonthamurra claim area, in the course of the several years he took instructions in the 1990s. Nor did Coral King or Ivy Booth give any evidence of learning at a young age, or in any detailed way, of any putative entitlement to the present claim area through Toney. [109] For those reasons, I consider that the claim by the Booth/Fisher families to be Boonthamurra and to have an interest in the present claim area through Tony is also not made out. (Emphasis added.) 114 The Booth family respondents had contended that through descent from Toney, a Kungardutyi woman, they had acquired native title rights and interests in relation to areas which fell within both the Boonthamurra and Wongkumara claim areas, including the Wilson River area and the area around Mount Howitt. By finding that there was "no evidence" that descent from Toney gave native title rights or interests to any part of the Boonthamurra claim area (which must have included the overlapping areas such as the Wilson River area and the area around Mount Howitt), and by finding that Kungardutyi country is well to the south, in north-western New South Wales, Mansfield J made findings which went beyond the Boonthamurra claim area. 115 That finding placed Kungardutyi country a long way from the area claimed by Mrs King in the joinder application. Thus, although the decision in Wallace was directly concerned with the Boonthamurra rather than the Wongkumara claim area, the finding is relevant to the joinder application. Mrs King did not contend otherwise.

[21]

The relevant principles of abuse of process and their application to the joinder application 119 In Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256, the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) at [15] accepted as correct the statement of McHugh J in Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286, that: Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. 120 More recently, in UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 at [1] the plurality (Kiefel CJ, Bell and Keane JJ) said that while the varied circumstances in which the use of the court's processes will amount to an abuse do not lend themselves to exhaustive statement, either of two conditions constitute an abuse of process, being where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. 121 If the joinder application is allowed Mrs King will become a respondent to the Wongkumara application and will advance the claim that through descent from Toney she has acquired native title rights and interests in relation to the Wongkumara claim area, including the Wilson River area and the area around Mount Howitt. She will advance that claim notwithstanding that: (a) in Wallace Geoffrey Booth and Dennis Fisher advanced a claim with Mrs King's support which extended into the Wongkumara claim area, based on descent from Toney. The Court found that Kungardutyi country was well to the south, in north-western New South Wales, and well away from the area now claimed through the joinder application; (b) Geoffrey Booth and Dennis Fisher were previously respondents to the Wongkumara application, with her support, and they withdrew as parties when challenged by the applicants; and (c) in Booth the Court found that a claim by Mrs King and Geoffrey Booth to have acquired native title rights and interests in the Wongkumara claim area through descent from Toney was an abuse of process and had no reasonable prospects of success. 122 Whether conduct of that description rises to the level of an abuse of process requires consideration of all the circumstances. In Johnson v Gore Wood & Co [2002] 2 AC 1 at 31, approved in Tyne at [7], Lord Bingham of Cornhill explained, that it requires the court to make: …a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. The onus of proving an abuse of process case rests upon the party alleging abuse, and the onus is a heavy one: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529. 123 Mrs King was not a respondent either in Wallace or the Wongkumara application but I consider Geoffrey Booth represented the interests of the Booth family, including Mrs King, in those proceedings. I note that Mrs King actively supported the native title claims made including by putting on evidence, and that she would have had the benefit of any success in those proceedings. Then, Mrs King was a party in Booth. Through the joinder application she now seeks to advance essentially the same claim as the Court refused in Booth. 124 In cases in which the alleged abuse of process involves an attempt to raise substantially similar claims in successive proceedings, the abuse of process is not dependent upon the existence of an estoppel: see Tomlinson at [25]-[26] (French CJ, Gageler and Keane JJ). As Gordon J explained in Tyne (at [138]): Where there are attempts to raise substantially similar claims in successive proceedings, the doctrine of abuse of process overlaps with the doctrine of estoppel. The raising of issues in successive proceedings can be simultaneously the subject of an estoppel which has arisen as a consequence of the earlier, final judgment, and conduct which constitutes an abuse of process. However, such issues may also be considered an abuse of process in circumstances where they do not give rise to an estoppel because the doctrine of abuse of process is "inherently broader and more flexible than estoppel". By way of example, estoppel would not preclude a person who was neither a party nor the privy of a party to earlier proceedings from raising similar or related claims in successive proceedings, whereas abuse of process might in appropriate circumstances. (Citations omitted, emphasis in original.) 125 Whether it is appropriate to determine that a later similar or related proceeding is an abuse of process requires that there be a connection between the litigants. As Handley AJA explained in Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245 at [114]: Earlier proceedings by one litigant could not make later proceedings by another an abuse of process unless there was a relevant connection between the litigants. Since the issue was abuse of process realities must be relevant. The 'broad merits-based judgment' excluded any narrow or artificial approach. 126 In O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 at [106] Beazley P cited with approval the decision in Stenhouse in which Giles CJ Comm D said, at 64,089, that the factors for assessing the existence of an abuse of process included: …the importance of the issue in and to the earlier proceedings; the terms and finality of the finding as to the issue sought to be relitigated; the identity between the relevant issues in the two proceedings; the extent of the oppression and unfairness to the other party if the issue is relitigated; the impact of the re-litigation upon the principle of finality and on the public confidence in the administration of justice; as well as the overall balance of justice between the parties. The approach in Stenhouse was approved in Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198 per Handley JA at [32] (Mason P and Heydon JA agreeing). 127 In determining whether the bringing of a later similar or related proceeding amounts to an abuse of process relevant civil procedure provisions, including s 37M of the FCA must also be considered. As the plurality said in Tyne at [38]: The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA. Integral to a "just resolution" is the minimisation of delay and expense. 128 Having regard to these principles I am satisfied that that the joinder application is an abuse of process. 129 In my view the joinder application is abusive of the Court's processes even if one only has regard to the decision in Booth. In Booth the Court held that: (a) the native title determination application by Mrs King and others in which she claimed to have acquired native title rights and interests in the Wongkumara claim area through descent from Toney was an abuse of process; and (b) she had no reasonable prospect of establishing that she had acquired such rights and interests through descent from Toney. If Mrs King considered Booth to be wrongly decided it was open to her to appeal. That was the appropriate course to take, not to wait one and a half years and then bring the joinder application through which she attempts to again claim that she has acquired native title rights and interests in relation to a subset of the same claim area based on the same apical ancestor considered in Booth and refused, as if the judgment in Booth had not been given. 130 To allow the joinder application would allow Mrs King to attempt to re-litigate the issues in Booth by asking a single judge of the same court to revisit those findings on the basis of what is contended to be "fresh evidence". She did not take the Court to any authority which would allow such a course and I am not persuaded that it is permissible. If, contrary to my view, it is permissible I am not persuaded it is appropriate in the circumstances of the present case, particularly when the new evidence is not in in reality "fresh". Doing so would be akin to reopening the judgment in Booth and even for an appellate court of last resort (which is not the position here) the circumstances in which outside of an appeal a court may reopen a judgment which has been pronounced are extremely rare: State Rail Authority of New South Wales v Codelfa Constructions [1982] HCA 51; (1982) 150 CLR 29 at 38 (Mason (as his Honour then was) and Wilson JJ); Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 (Mason ACJ, Wilson and Brennan JJ). 131 I am confirmed in the view that the joinder application is abusive by the earlier proceedings brought on behalf of the Booth family. Geoffrey Booth was a party in three proceedings in which he claimed to have acquired native title rights and interests in relation to the Wongkumara claim area through descent from Toney: (a) as a respondent in the Wallace proceeding (with Mrs King actively supporting that claim); (b) as a respondent in the Wongkumara application (with Mrs King again actively supporting that claim); and (c) as an applicant along with Mrs King in the Booth proceeding. In Booth (at [74]) Jagot J found that the actions taken by Geoffrey Booth in the past were taken by him as a representative of the Booth family generally. I respectfully take the same view, and the same applies to Mrs King's role as an applicant in the Booth proceeding which she brought on behalf of a claim group which largely comprised the Booth family. 132 As Jagot J explained in Booth (at [75]): The issue of abuse of process requires consideration of all of the circumstances to determine whether there is oppression and the bringing into disrepute of the administration of justice. It is a case of a party, representing the interests of his family, having made a claim supported by evidence in a first proceeding (Wallace) and failing in that claim, having made another claim in a second proceeding (the Wongkumara proceeding) and withdrawing that claim before it could be determined, now making a claim in a third proceeding on the basis of contentions and evidence not only fundamentally inconsistent with the contentions and evidence relied upon in the first proceeding, but also as an illegitimate alternative to having the withdrawn claim in the second proceeding being determined in that proceeding. 133 Mrs King's position is not exactly the same as that of Geoffrey Booth but it is similar. Geoffrey Booth, with Mrs King's support, represented her and the Booth family's interests in a first proceeding (Wallace) which was decided adversely for them, and again in a second proceeding (the Wongkumara application) which after eight years of litigation he withdrew from before it could be determined. Then, together, they brought a third proceeding (Booth) which was decided against them. Now through the joinder application Mrs King seeks to be joined as a respondent to the application from which Geoffrey Booth earlier withdrew in which she will claim, in effect for the fourth time, to have acquired native title rights and interests in the Wongkumara claim area through descent from Toney. 134 Exercising a "broad merits-based judgment" and eschewing a narrow or artificial approach, there is a sufficient connection between actions of Geoffrey Booth and Mrs King in the Wallace proceeding, as a respondent in the Wongkumara application, the Booth proceeding and the present application such that the joinder application amounts to an attempt to raise a substantially similar claim in successive proceedings. It is an abuse of process. 135 Mrs King argued that there is no abuse of process because, although Wallace concerned a claim to have native title rights and interests through descent from Toney, it concerned a claim area which was not part of the Wongkumara application and she was not a party. I disagree. First, and fundamentally, that contention does not deal with the abuse having regard to the decision in Booth alone, in which she was a party. Second, in Wallace the Booth family respondents contended that through descent from Toney they had acquired native title rights and interests in relation to areas which overlapped the Boonthamurra and Wongkumara claim areas, including the Wilson River area and the area around Mount Howitt. As I have said, by finding that there was "no evidence" that descent from Toney gave native title rights or interests to any part of the Boonthamurra claim area (which must have included the overlapping areas), and by finding that Kungardutyi country is well to the south, in north-western New South Wales, Mansfield J made findings which went beyond the Boonthamurra claim area. I respectfully agree with Jagot J's finding in Booth (at [64]) in that regard. 136 It should be kept in mind that Mrs King did not contend that the findings in Wallace are irrelevant on the basis that she was not a party. She expressly accepted that the findings in Wallace are relevant in the joinder application. Rather, she argued that they are unreliable and that another judge of the Court should reconsider the lay and expert evidence, including the proposed fresh evidence, and re-decide the question as to: (a) the location of Kungardutyi country; and (b) whether traditional rights and interests in the Wongkumara claim area, particularly around the Wilson River area, may be acquired through descent from Toney. Looking at the realities, to allow the joinder application would permit Mrs King, in effect, to re-litigate the findings both in Wallace and Booth by asking a single judge of the same court to revisit those findings. Again, I am not persuaded that is permissible. If, contrary to my view it is permissible, I am not persuaded it is appropriate in the circumstances of the case. 137 Mrs King's argument that if Geoffrey Booth acted as her privy in interest in the Wallace proceeding he represented the Booth family in relation to "the claim the subject of the proceeding but not with respect to their individual claims" somewhat misses the point. The opposing parties did not contend that Mrs King was estopped from bringing the joinder application, rather they argued that it amounts to an abuse of process. As the High Court explained in Tomlinson, abuse of process is "inherently broader and more flexible than estoppel" (at [25]), and making a claim or raising an issue which was made or raised and determined in an earlier proceeding can constitute an abuse of process even "where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel" (at [26]). 138 The decision in Yilka is clearly distinguishable from the present case. In relation to the question of re-litigation the Yilka applicants contended (at [2273]) that it was developments in the law through the decisions in Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 and Western Australia v Brown (2014) 253 CLR 507 which had given rise to the different formulation of the claims between different competing claim groups in the Yilka application. Further, McKerracher J said that, in respect of the Yilka claim, there "was expressly no final conclusion on the merits of a number of issues" in the Wongatha and Cosmo proceedings: Yilka at [2281] (see also [2283], [2290]). The issue in Yilka turned on whether the dismissal of earlier applications closed the door to future group claims in circumstances where there had been no negative determination of native title rights and interests by Lindgren J in Wongatha (see: Yilka at [2327] and [2328]). McKerracher J said (at [2432]): …it must be recognised that those claims are not claims by the same people seeking the same relief for the same reasons for the same area. The differences have been discussed. But it is difficult to identify any reason why others should not be permitted to pursue claims for other areas of land covered by the Wongatha claim. 139 That stands in contrast with the present case where there has been no relevant change in the law, and the joinder application is based in a contention that in two earlier decisions the Court erroneously decided a factual issue regarding the location of Kungardutyi country. I do not understand McKerracher J to state in Yilka (at [2474]) that in native title litigation abuse of process cannot operate in relation to persons who are not parties to previous litigation, but if his Honour could properly be understood in that way I would respectfully disagree. Such a proposition would be directly contrary to the High Court's conclusion in Tomlinson at [26]. 140 I now turn to consider some of the other factors relevant to deciding whether a proceeding is an abuse of the Court's processes, largely those as stated in Stenhouse.

[24]

The terms and finality of the finding as to the issue sought to be re-litigated 143 Mrs King argued that the summary judgment in Booth pursuant to s 31A(2) of the FCA in which the Court held that the application had no reasonable prospects of success was interlocutory rather than final, essentially on the basis that the judgment determined "something less than all claims of all parties": see Jefferson Ford at [174], [180] per Gordon J. On that basis Mrs King sought to argue that the joinder application could be allowed without setting aside or overturning the decision in Booth. 144 In my view the judgment in Booth was final rather than interlocutory. In Jefferson Ford Finkelstein J (at [14]) and Gordon J (at [173]) held that an order giving summary judgment under s 31A in relation to "all claims and all parties" is final. That was in distinction to a judgment for "something less" than that, which Gordon J described as "a partial summary judgment" and considered to be interlocutory. Rares J, in dissent on this issue, took the view that any summary judgment under s 31A whether "complete" or partial was interlocutory. 145 In my view the judgment in Booth was in relation to all claims and all parties. Mrs King and Geoffrey Booth, as applicants, made a native title determination application on behalf of a native title claim group they described as the Kungardutyi Punthamara People, in which they claimed to have acquired native title rights and interests in relation to the Wongkumara claim area through descent from four apical ancestors including Toney. That was a single claim by the applicants acting in a representative capacity, on behalf of the claim group they identified. The Court held that the application had no reasonable prospect of success. Upon the judgment in Booth there was nothing further left to decide and no further orders that were required to be made. This was not a case like Jefferson Ford where the summary judgment left various other claims and cross claims pending between the parties. 146 Further, Mrs King's reliance on the decision in Jones v Insole is misconceived. It can be accepted that an order striking out a statement of claim on the ground that it discloses no cause of action is interlocutory as it does not finally determine the substantive rights of the parties: Bienstein v Bienstein (2003) 195 ALR 225 at [25]. To decide whether a statement of claim discloses a cause of action the court must determine whether, as a matter of law, the pleaded cause of action exists. Such a decision is different in quality and kind to a decision made pursuant to s 31A(2), in which the judge finally determines the rights of the parties in a principal cause between them, on the merits, although doing so summarily: Jefferson Ford at [8] (Finkelstein J) at [161] (Gordon J).

[25]

The impact of the re-litigation upon the principle of finality of litigation and on the public confidence in the administration of justice 147 Contrary to Mrs King's submissions, allowing the joinder application would have a deleterious impact on the finality of litigation, and thus on public confidence in the administration of justice. In Wallace the Court held that Kungardutyi country was nowhere near the area which Mrs King now seeks to claim that through descent from Toney she has acquired native title rights and interests. In Booth the Court held that there was no reasonable prospect of Mrs King and Geoffrey Booth establishing that they had acquired native rights and interests in the Wongkumara claim area through descent from Toney. If the joinder application is allowed, Mrs King will again be able to litigate a claim that through descent from Toney she has acquired native title rights and interests in the Wongkumara claim area, notwithstanding the judgments in Booth and Wallace. 148 Thus there is a risk of conflicting judgments if the joinder application is allowed. For example, if Mrs King is able to obtain a finding that Kungardutyi country is located in the Wilson River area or that descent from Toney provides native title rights and interests in the Wilson River area and/or around Mount Howitt that overlap the Boonthamurra claim area it will be in conflict with the findings in Wallace. Such conflicting findings would tend to bring the administration of justice into disrepute. 149 Further, as the plurality in Tyne said (at [38]), and Gordon J explained (at [139]) the principles relevant to determining whether a proceeding amounts to an abuse of process must be interpreted and applied in light of the overarching purpose set out in s 37M of the FCA. Section 37M provides that the overarching purpose of "the civil practice and procedure provisions" is to "facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible". Section 37M(2) takes into account into account wider public interests than just those of the parties to the dispute. 150 The administration of justice may be brought into disrepute if there is "a public perception that the legal system is unfair, inefficient, ineffective, expensive (both for the parties and in terms of the use of public monies) or contrary to the rule of law": Tyne at [151] (Gordon J). In the context of the three earlier proceedings by Geoffrey Booth representing the Booth family, and also by Mrs King as an applicant representing the Booth family, allowing Mrs King to again advance a claim to have acquired native title rights and interests in the Wongkumara claim area through descent from Toney, in effect for the fourth time, would give rise to unacceptable inefficiency, delay, expense and unfairness to the Wongkumara applicants, and inefficiency in the use of public resources.

[26]

The extent of the oppression and unfairness to the other party if the issue is re-litigated 151 In the joinder application the area in which Mrs King claims to have acquired traditional rights and interests through descent from Toney is a subset of the claim area in the Booth proceeding, in which claim the Court held that Mrs King had no reasonable prospect of success. Given that and having regard to the earlier proceedings by Geoffrey Booth it would be undeniably oppressive to the Wongkumara applicants and QSNTS to be required to face yet another proceeding in which descent from Toney is alleged to found native title rights and interests in relation to the Wongkumara claim. It is relevant too that QSNTS was a party in Wallace and if joinder is allowed it will be required to again meet an argument regarding the location of Kungardutyi country, upon which it was successful in Wallace. 152 I am satisfied that the Wongkumara applicants and QSNTS will suffer substantial inconvenience, expense and delay if the joinder application is allowed. All of the applicant's expert evidence in the Wongkumara application has been filed, and Mrs King did not contest the Wongkumara applicants' assertion that the evidence of Dr Powell was not treated as relevant in the reports filed by the applicants' expert witnesses. Thus, if joinder were to be allowed, the applicants' experts would be required to consider and address Dr Powell's opinions, and that is likely to lead to further delay and considerable further expense. The proceeding was previously listed for trial on 18 March 2019, but for various reasons that date was vacated, and it has not been relisted. The Wongkumara applicants contend and I accept that they have had to expend considerable monies and have suffered years of delay through Geoffrey Booth acting as a respondent in the Wongkumara application, and through Geoffrey Booth and Mrs King, as applicants, bringing the Booth proceeding. They have suffered further delay through the joinder application. To allow joinder would continue the delay and oppression, and permit Mrs King to continue to vex the Wongkumara applicants.

[27]

The inconsistency in Mrs King's evidence 153 Further, I consider Mrs King brings the joinder application on a basis which is inconsistent with the basis upon which she asserted native title rights and interests as a witness in the Wallace proceeding. In that proceeding Mrs King filed an affidavit dated 20 October 2012 in which she deposed: I belong to the Boonthamurra tribe, and I was told that I was Boonthamurra by my father and my mother, from a very early age. I claim my Boonthamurra heritage through my great-grandmother, who was referred to by others as "Clara". I was told by my mother, and my father, and my direct elders, that a child's tribe was chosen by its mother, at birth. She said that Boonthamurra "ancestral land" was around Nockatunga. 154 The transcript of the hearing in Wallace shows that Mrs King gave evidence that her father Bill Booth was a Boonthamurra man (T212), she was Boonthamurra and "nothing else" (T213), and that her children were Boonthamurra (T213). She said that she had known she was Boonthamurra, since she was "a kid" (T223). She had been told she was Boonthamurra by her uncles and elders (T241), her father told her that he came from Nockatunga and Noccundra because "that's where he was born" and "that's where his tribe lived" (T241) and that was his "ancestral land" (T242). Although she knew the tribe was Boonthamurra they called themselves 'the Wilson River Clan' because they lived on the Wilson River (T240). Mansfield J noted that Mrs King referred to Boonthamurra as her chosen tribe and she repeatedly said "that her country was around the Wilson River area, Nockatunga and Noccundra" (at [74]). She said that "we referred to ourselves as the 'Wilson River Clan'", being people who lived around Nockatunga and Noccundra, which she saw as her country (at [68]). 155 Her evidence in the joinder application is different. In her third affidavit she deposed as follows: I was raised as Kungardutyi/Punthamarra and have always been told that my country was in the northern area of the Wongkumara claim. I have always known that Granny Toney was my grandmother and was told that I am Kungardutyi through my Granny Toney by my dad, uncles and aunties. I have also always been told that my country was the same as Granny Toney's country and Granny Clara's country and that it includes Mt Howitt, around Nockatunga and the Wilson River, Cooper Creek area. … The country of Granny Toney and as I have been told, my country, is in the Cooper Creek, Wilson River area and includes going down from Durham Downs to the north, Mount Howitt and around Nockatunga. 156 At no stage in Wallace did Mrs King identify herself as Kungardutyi and, as Mansfield J noted (at [108]), she did not give "any evidence of learning at a young age, or in any detailed way, of any putative entitlement to the present claim area through Toney". Not once did Mrs King refer to her claimed native title rights or interests as deriving from any Kungardutyi society or Kungardutyi Punthamara society. She did not, as she now claims, assert native title rights, through descent from Toney, over the northern half of the Wongkumara claim area. Her evidence in Wallace limited the ancestral country of her father to the Wilson River area around Nockatunga and Noccundra, it did not extend to cover the areas she now says she was told was her country. 157 In Booth (at [69]), Jagot J said, and I respectfully agree, that Geoffrey Booth as a representative of the Booth family conducted the Wallace litigation on one basis and, having failed, then brought the Booth proceeding on an inconsistent basis. The same can be said of the joinder application. Mrs King gave evidence as to her acquisition of native title rights on one basis in Wallace and having failed she then brought the Booth proceeding and now the joinder application, on an inconsistent basis. In Booth and again in the joinder application Mrs King sought to combine the formerly separate alleged identities of Kungardutyi and Punthamara into a new society, never identified in Wallace, to claim native title rights and interests in relation to an area in which the Court held descent from Toney did not confer native title rights or interests.

[28]

The fresh evidence 158 Mrs King accepted that the evaluation of the evidence by Mansfield J in Wallace and Jagot J in Booth is relevant in the joinder application, but contended that the Court has now been provided with "fresh evidence" and expert opinion, based upon subsequent research, which justified a different conclusion being reached. Again, if Mrs King considered Booth to be wrongly decided the appropriate course for her to take was to appeal. Instead, she invites a single judge to revisit findings made by other judges of the same Court on the basis of the allegedly fresh evidence. I am not persuaded that is permissible, and if it is permissible I am not persuaded it is appropriate in the circumstances of the present case. 159 Mrs King's submissions regarding whether it is appropriate pursuant to s 86 of the NTA to adopt the findings from another proceeding miss the point. There was no application under s 86 for the Court to adopt the findings made in Wallace, and the question does not arise. 160 It is though worth noting that I am not persuaded that the so-called "fresh evidence" or the further opinions of Dr Powell indicate that his Honour's findings are unreliable or otherwise indicate that is in the interests of justice to allow the joinder application. Mrs King referred to three pieces of "fresh evidence" which she said she had recently obtained, being: (a) the 1938 Tindale record which identified Toney as Kungardutyi and that she was born at Mount Howitt; (b) a letter written in 1905 by Edward Davis describing Toney as "a native of the Mount Howitt area"; and (c) the Hercus Declaration. 161 The first two items of evidence are not fresh evidence. In the Wallace proceeding the Booth family respondents submitted and Mansfield J accepted on the basis of the Tindale records that that Toney was a Kungardutyi person and that she was born at Mount Howitt. If that was ever contentious it has not been so since the judgment in Wallace was handed down in August 2014. 162 Further, the Hercus Declaration is not new in the sense of being based on newly discovered historical records or material. It is a reinterpretation in 2017 of historical records which Dr Hercus had considered in her earlier research, in which she had concluded that there were two, not three, Kungardutyi areas. The relevant historical records were available to the Booth family respondents in Wallace, and it is appropriate to infer that they could have engaged Dr Hercus to give evidence if they wished to. 163 The reinterpretation comprises what Dr Hercus refers to as her "post Mutawintji work" research, meaning research she undertook after she and others had written the Mutawintji report, which report was in evidence in Wallace (at [84]). Much of the Hercus Declaration repeats matters contained in the Mutawintji report and the post Mutawintji work is set out at [12]-[14 ]. It relates to a Kungardutyi group whose members include the family of Frank Booth and his wife Toney being "the Kungardutyi group that Tindale locates within the Wilson-Cooper River region", and which Dr Hercus labelled as Kungardutyi 3. The Hercus Declaration confirmed that by stating: It is clear from the Tindale records that this location is based on information supplied by Frank Booth and Tindale's analysis of the written records that were available to him in conjunction with other records, in particular the linguistic records of Gavan Breen's work with Frank Booth and Frank Booth's sister, Alice Miller, Nils Holmer's work with Frank Booth's sister, Florrie Gray and Janet Matthews work with Frank Booth's son, Bill Booth. 164 The linguistic evidence was not new. The new evidence is the conclusion that there is a third Kungardutyi group, labelled as Kungardutyi 3 by Dr Hercus, which includes the family of Frank Booth and Toney, who were located by Tindale in the Wilson River-Cooper Creek region. As QSNTS submitted, the groups Dr Hercus identified and their locations are: Kungardutyi 1 being a group in the Cooper Kyabra region (which falls within the Boonthamurra claim), Kungardutyi 2 being the group found in Wallace to have interests in country in north-western New South Wales; and the proposed Kungardutyi 3 being a group based on the Wilson River, based on linguistic work previously undertaken. 165 However, it is not new that some historical records locate Kungardutyi in the Wilson River area. Mansfield J referred (at [103]-[104]) to the differing expert's views in relation to the location of Kungardutyi country, including Mr Southon's evidence of "records that place Kungadutji in the Nockatunga area" (which as I have said is in the Wilson River area). Thus, the essential facts in relation to the conclusion that there was a third location with which Kungardutyi people were associated were before the Court in Wallace; being the identity of Toney as a Kungardutyi person, her birthplace at Mount Howitt, Mrs King's claim that her people lived in the Wilson River area, and that some historical records located Kungardutyi country around Nockatunga. Those essential facts have not changed as a result of the Hercus Declaration. The new material in the Hercus Declaration does not materially alter the evidence regarding Toney's origins, nor Tindale's description of her as Kungardutyi, nor her descendants, nor that of her parents, nor does it describe any extant society called 'Kungardutyi- Punthamara'. 166 Notwithstanding that Mansfield J was aware of historical records indicating that Kungardutyi country was in the Wilson River area, he preferred other evidence and concluded that it was more likely that Kungardutyi was further south than and "well remote" from the Boonthamurra claim area (at [106]). Additionally, his Honour concluded that there was no evidence to support the proposition that Toney Booth acquired rights to country in the Mount Howitt area through her birth in that area (at (107]). 167 Nor does the Hercus Declaration have the significance which Mrs King seeks to give it. In particular Dr Hercus identified the impossibility of determining whether the term 'Kungardutyi' refers to a language group or a group associated with circumcision (at [12]), as follows: It is not possible for lack of detail in these records, to determine whether the name Kungardutyi refers to the same group whose members were at different places when these records were made or whether these records pertain to different groups that were associated with different places, but were known as 'Kungardutyi' because perhaps their members (a) had adopted the practice of circumcision, or (2) spoke the language known in the early records as 'Punthamara' or 'Kungardutyi' and in the most recent records as 'Wangkumara-Punthamara' or "the Wilson River language" (Emphasis added). In Wallace (at [86]) Mansfield J did not accept that the 'critical step' in Dr Powell's reasoning, which was to "tie the term Kungardutji to a language or language land holding group with country that was occupied by Punthamara and/or Wongkumara People" was warranted on the evidence. His Honour also found that it was not warranted on the evidence to find "that Kungardutji is a tribal ascription rather than a general description of status as an initiated person" 168 Finally, the information given to Tindale, upon which Dr Hercus partly based her conclusion as to the existence of the Kungardutyi 3 group, came from Frank Booth and his siblings. It is uncontentious that he and his siblings were the children of Clara and a non-Aboriginal man, Hughie Booth. In Wallace the Court found that Clara was a Yandruwandha/Yawarrawarrka woman, and as she was the only Aboriginal parent Frank Booth and his siblings were Yandruwandha/Yawarrawarrka People, and therefore descent from them cannot found native title rights or interests in the Wongkumara claim area. That does not however speak to traditional rights and interests which might be acquired through descent from Toney.

[30]

Lateness and prejudice 170 Even if, contrary to my view, it be accepted that the joinder application is not an abuse of process, I consider it nevertheless appropriate to refuse the application. That the joinder application was made late was conceded by Mrs King. The Wongkumara application was commenced in March 2008 and the joinder application was not made until November 2018, more than 10½ years later. That was so notwithstanding that in August 2014 in Wallace (at [47]-[48]), Mansfield J said that the assertion of native title rights and interests by the Booth family: …might lead to a fresh claim made by the "Wilson River group" in respect of an area which overlaps each of the Boonthamurra, Kullilli and Wongkumara Peoples claim areas. In that regard, it is worth noting that, as I observed when that potential position emerged, the general south-west area of Queensland has been the subject of extensive claims made over a long period of time. All of those claims (other than the ones presently on foot) have either been dismissed or discontinued. If there is to be another claim, it should have been brought earlier and in a timely manner. (Emphasis added.) I take a similar view. If Mrs King wished to apply to be joined as a respondent to the Wongkumara application she should have done so well before November 2018. 171 That is not to suggest that Mrs King sat on her hands from March 2008 to November 2018 in relation to her claim to have traditional rights and interests in relation to the Wilson River area and around Nockatunga. She supported Geoffrey Booth in his claim to have native title rights and interests in that area in the Wallace proceeding, and again as a respondent to the Wongkumara application. Then, as an applicant together with Geoffrey Booth she commenced the Booth proceeding. 172 Mrs King however argued that the Court should treat the present application as being independent from the earlier actions taken by Geoffrey Booth. She cannot have it both ways. If, contrary to my view, the joinder application is properly to be seen as independent from the earlier proceedings brought by Geoffrey Booth then the delay between 2008 when the Wongkumara application was commenced and November 2018 when Mrs King made the joinder application is quite excessive. If, as I consider to be the case the joinder application is not independent from the earlier proceedings then the prejudice she will suffer if joinder is refused must be viewed in the context that she, and/or Geoffrey Booth in representing her interests, have previously taken up the opportunity to assert native title rights and interests in relation to the Wongkumara claim area based on descent from Toney, but were unsuccessful. 173 Mrs King gave several explanations for the lateness of the joinder application, being that: (a) she had been seeking pro bono legal assistance in relation to asserting native title rights and interests in the Wilson River-Cooper Creek region of south-west Queensland, which assistance had recently been refused. That may be so, but if the earlier applications are to be treated as independent, that does not explain 10½ years of delay. Nor given the delay that had already occurred, does it justify taking almost 1½ years after the decision in Booth to commence the application; (b) the decision to make the joinder application was difficult given her "bad experiences" with the decisions in Wallace and Booth and because it was necessary in order to protect her rights and interests in the part of the Wongkumara claim area that she believes is her country. I have no doubt that those two decisions were unhappy ones for her, but while the Court's refusal of the earlier claims might explain the delay it does not justify it; and (c) she had only recently obtained copies of records she describes as "fresh evidence" regarding Toney. Mrs King summarised the recently obtained "fresh evidence" as follows: (i) Tindale records from 1938 which identified her grandmother Toney as "Tonie Booth", associated her with the Kungardutyi tribe and said that she was born at Mount Howitt; (ii) a letter written in 1905 by Edward Davis (Toney's first husband) to the Protector of Aboriginals in Charleville seeking permission to marry Toney, which described her as "a native of the Mount Howitt area"; and (iii) the Hercus Declaration made in December 2017. As I have previously explained, in my view that evidence is either not new or it does not have the significance for which Mrs King contends. 174 As I said (at [152] above), allowing the joinder application is likely to give rise to substantial inconvenience, expense and delay for the Wongkumara applicants and QSNTS. I will not reiterate those matters but they are material to my conclusion. The prejudice for Mrs King if the joinder application is refused is that she will lose what is likely to be her final opportunity to assert native title rights and interests in relation to the Wongkumara claim area, in circumstances where it is evident that she has a strong and sincere belief that she has such rights and interests. It is fundamental that Mrs King's rights should not be determined in her absence and appropriate to give considerable weight to the statutory intention of having all parties whose interests may be affected before the Court at the one time to be dealt with by the one determination: Gamogab at [60], [64]. 175 But in stating that it is fundamental that an order which directly affects a person's rights or liabilities should not be made unless the person is joined as a party, the Full Court in Gamogab was not suggesting that there may not be circumstances where a person's conduct and the prejudice that will be caused to other parties require that joinder should be refused even though the person's rights may be affected: see Gamogab at [61]; Blucher at [26]. There are numerous examples where joinder has been refused on that basis: see for example: Brooks on behalf of the Mamu People v State of Queensland (No 2) [2013] FCA 557; Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370. While accepting that such considerations are fundamental, the Court must assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined: Gamogab at [59]. 176 Mrs King sought to rely on decisions such as Blucher and Wyles on behalf of the Gurambilbarra Wulgurukaba People v State of Queensland [2019] FCA 1502 in which the Court considered the prejudice to the joinder applicant against the prejudice to the applicant in the native title determination application and decided in favour of the joinder applicant. She argued that her application is analogous to that in Blucher. 177 In Blucher the joinder applicant was a member of the Warrabal People, who had brought an application for a determination of native title in relation to an area wholly overlapping the claim area in a native title determination application by the Gaangalu People. He was formerly a respondent to the Gaangalu claim but had subsequently withdrawn as a party. Then, when the Warrabal claim was about to be discontinued because it had not been properly authorised, he sought to be re-joined as a respondent to the Gaangalu proceeding, and was permitted to do so. Mrs King submitted that the facts in Blucher are analogous to those in the present case, and set out the similarities. She contended that her application is stronger than that in Blucher as, unlike the joinder applicant in that case: (a) she has provided a satisfactory explanation for her delay; and (b) she had not previously withdrawn as a respondent and then sought to rejoin and thus had not previously abandoned her claim nor created the impression that she had done so. 178 The decisions in Blucher and Wyles do not show that it is in the interests of justice to allow the present application. Whether it is in the interests of justice to allow a joinder application is a fact intensive and case specific enquiry, and the numerous different decisions in relation to joinder under s 84(5) of the NTA reflect the varied factual circumstances in which such applications have been made. The asserted similarity in the facts of Blucher and the present case is put at a high level and I consider the present case to be readily distinguishable. The critical feature of the present case, not present in Blucher, is that in three previous applications, Clancy Booth, Geoffrey Booth, Mrs King and other members of the Booth family have asserted native title rights and interests in relation to the Wongkumara claim area based on their descent from Toney and others, each time unsuccessfully. In the last three of those proceedings Mrs King was an active participant, including as an applicant in Booth. 179 Mrs King seeks to distance herself from those earlier applications, arguing that notwithstanding that she is a member of the Booth family and supported the claims, the Court should approach her application independently of the past activities of Geoffrey Booth. I do not accept that it is appropriate to do so. That would be to ignore reality. I consider the prejudice that will be suffered by the Wongkumara applicants if the joinder application is allowed outweighs the prejudice that may be suffered by Mrs King if joinder is refused. In the circumstances it is not in the interests of justice to allow Mrs King to come along now, 10½ years after the Wongkumara application was filed, and be joined as a respondent.

[33]

SCHEDULE OF PARTIES QUD 851 of 2018 Applicants Fourth Applicant: DONALD JAMES DIXON Fifth Applicant: ARCHIE ALFRED EBSWORTH Sixth Applicant: ERNEST (HOPE) EBSWORTH Seventh Applicant: JACQUELINE ELIZABETH HILL Eighth Applicant: NORMAN JOHN HODGE Ninth Applicant: SHARLENE LOUISE KNIGHT Tenth Applicant: LORETTA MCKELLAR Eleventh Applicant: IONA DAWN SMITH Twelfth Applicant: ROSEMARY (ROSE) ANNE WILSON Respondents Fourth Respondent: BULLOO SHIRE COUNCIL Fifth Respondent: ATTORNEY GENERAL FOR NEW SOUTH WALES Sixth Respondent: QUILPIE SHIRE COUNCIL Seventh Respondent: NEW SOUTH WALES ABORIGINAL LAND COUNCIL Eight Respondent: QUEENSLAND SOUTH NATIVE TITLE SERVICES LTD Ninth Respondent: TIBOOBURRA LOCAL ABORIGINAL LAND COUNCIL Tenth Respondent: ERGON ENERGY CORPORATION LIMITED ACN 087 646 062 Eleventh Respondent: ESSENTIAL ENERGY Twelfth Respondent: ORIGIN ENERGY RESOURCES LIMITED Thirteenth Respondent: TELSTRA CORPORATION LIMITED Fourteenth Respondent: ALLIANCE PETROLEUM Fifteenth Respondent: AUSTRALIA PACIFIC LNG PTY LIMITED ACN 001 646 331 Sixteenth Respondent: BASIN OIL DEVELOPMENTS PTY LTD Seventeenth Respondent: BEACH PETROLEUM LIMITED ABN 20007617969 Eighteenth Respondent: BRIDGE OIL DEVELOPMENTS PTY LTD Nineteenth Respondent: CPC ENERGY PTY LTD Twentieth Respondent: DELHI PETROLEUM PTY LTD Twenty-First Respondent: DOCE PTY LTD Twenty-Second Respondent: MAWSON PETROLEUM PTY LTD Twenty-Third Respondent: REEF OIL PTY LTD Twenty-Fourth Respondent: SANTOS (BOL) PTY LTF Twenty-Fifth Respondent: SANTOS (NARNL COOPER) PTY LTD Twenty-Sixth Respondent: SANTOS AUSTRALIAN HYDROCARBONS PTY LTD Twenty-Seventh Respondent: SANTOS LIMITED Twenty-Eighth Respondent: SANTOS PETROLEUM PTY LTD Twenty-Ninth Respondent: SANTOS QNT PTY LTD Thirtieth Respondent: STRIKE OIL LIMITED Thirty-First Respondent: VAMGAS PTY LTD Thirty-Second Respondent: ALENOLA INVESTMENTS PTY LTD Thirty-Third Respondent: ARRABURY PASTORAL COMPANY PTY LTD Thirty-Fourth Respondent: RODNEY ROSS BETTS Thirty-Fifth Respondent: WILLIAM JOHN CALDWELL Thirty-Sixth Respondent: CONSOLIDATED PASTORAL COMPANY PTY LIMITED Thirty-Seventh Respondent: GEORGINA PASTORAL COMPANY LIMITED Thirty-Eighth Respondent: STUART ALEXANDER MACKENZIE Thirty-Ninth Respondent: JILL A PEGLER Fortieth Respondent: ROSS M PEGLER Forty-First Respondent: S. KIDMAN & CO PTY LTD Forty-Second Respondent: TICKALARA PASTORAL COMPANY PTY LTD Prospective Respondent: CORAL KING

Parties

Applicant/Plaintiff:

McKellar on behalf of the Wongkumara People

Respondent/Defendant:

State of Queensland

Legislation Cited (3)

Registrar, Aboriginal Land Rights Act 1983(NSW)

Federal Court of Australia Act 1976(Cth)

Native Title Act 1993(Cth)ss 84(5), 86

Cases Cited (58)

Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 Nicholls v State of South Australia [2015] FCA 1407 O'Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198 Rogers v The Queen [1994] HCA 42; 181 CLR 251 Smith on behalf of the Kullilli People v State of Queensland [2014] FCA 691 Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423 (64,077) State Rail Authority of New South Wales v Codelfa Constructions [1982] HCA 51; (1982) 150 CLR 29 Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370 Timbercorp Finance Pty Ltd v Collins and Tomes [2016] HCA 44; (2016) 259 CLR 212 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 Wakka Wakka People #2 v State of Queensland [2005] FCA 1578 Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901; (2014) 313 ALR 138 Wallace on behalf of the Boonthamurra People v State of Queensland [2015] FCA 600 Walton v Gardiner (1993) 177 CLR 378 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Western Australia v Brown (2014) 253 CLR 507 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Wyles on behalf of the Gurambilbarra Wulgurukaba People v State of Queensland [2019] FCA 1502

[1994] HCA 42

(2013) 250 CLR 209

(2006) 226 CLR 256

(2003) 195 ALR 225

(2010) 75 NSWLR 245

(2007) 159 FCR 578

(1966) 117 CLR 423

(2007) 238 ALR 1

(2008) 167 FCR 372

(2013) 85 NSWLR 698

(2010) 241 CLR 118

(1982) 150 CLR 29