Authorisation of Ms Moran
38 However, the problem of authorisation does not stop there. I have already noted that s61(1) requires an applicant in the position of Ms Moran to show she or he is "authorised by all the persons … who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed". Section 251B says how this may be done. It reads:
"For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:
(a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind - the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or
(b) where there is no such process - the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind."
The authorisation claimed by Ms Moran does not fall within either of these alternatives. As to para (a), I note the assertion in Attachment R to the Amended Application that an "existing traditional process of decision making" was employed to authorise the claim N6001 of 1999. Reference is there made to "the Council of Elders, chaired by Zona Moran". Presumably this is a reference to the meeting of 7 February 1999. However, it does not appear that the people who met on 7 February 1999 at Kempsey enjoyed, or purported to exercise, any power to bind the claimant group as a whole. Nor is it asserted that the process of decision making employed in this case involved all the persons whom Ms Moran identified as members of the claimant group; that is, descendants of Murruin. Clearly it could not have done; not all those people have yet been identified.
39 The only direct evidence about the meeting of 7 February 1999 is contained in the affidavit of Ms Zona Moran, the person stated in Attachment R to the Amended Application to have chaired what was presumably this meeting. In an affidavit read by Mr Friend, Ms Zona Moran said:
To help Kim with the claim I provided to her historical documents which I had found in the course of my own research into Bob Moran. In company with other members of my family we met Kim at Kempsey on 7 February 1999 and I gave her the documents. Annexed and marked 'E', 'F', 'G', 'H', 'I', 'J', 'K', 'L', 'M', 'N' are copies of the documents I provided to Kim which are part of the historical material relied upon in this application."
40 Annexures "E" to "N" are copies of genealogical records and photographs. It is notable that Ms Zona Moran makes no claim that the meeting on 7 February 1999 was a meeting of a "Council of Elders" or of any other representative or collective body having power to bind all the descendants of Murruin. Nor does she assert that the meeting had any status under the traditional laws and customs of the members of the claimant group. In her affidavit, Ms Zona Moran refers to the authorisation statement quoted in para 11 above. She says it "is an example of the mis-statement of Kim's status in our family". Ms Zona Moran seems to be saying that the meeting of 7 February was not a meeting of the family's Council of Elders, if such a body exists. I note, also, that Ms Zona Moran describes Ms Kim Moran as "a junior member of our family". That is inconsistent with her participating in a meeting of a Council of Elders. Ms Zona Moran made it clear that she had no knowledge of the claim in N6006 of 1999, which she described as a "huge 'blanket' claim", until after it was filed.
41 Nor does Ms Moran bring herself within para (b). While I accept that this paragraph is wide enough to encompass individual authorisation by each member of the group, the authorising individuals must amount, collectively, to "the persons in the native title group". Perhaps there need not be an authorisation by every individual in the group, but it must at least appear that the authorising individuals constitute a majority of the members of the group. In order to do that, Ms Moran needs to identify all the living descendants of Murruin, the people she calls "the Moran clan".
42 Ms Moran has failed to show she is a person falling within s61(1) of the Act, and so entitled to make a claimant application.
43 In para 6 above I mentioned the requirement of s62(2)(d) for a description of the claimed native title rights and interests. That paragraph stipulates it is not enough to refer to all native title rights and interests that may exist, or have not been extinguished. The claim in N6001 of 1999 was described as "the right (subject to State and Federal law) for Gundungara people to enjoy and use and derive benefit from these lands and waters". That description is insufficiently specific; it gives no indication of the nature of the benefit that is claimed as a right. The claim in matter N6006 of 1999 is a little more specific; I prefer not to express an opinion whether or not it complies with s62(2)(d).
Summary dismissal of the claims
44 During the course of the argument regarding Mr Allen's motions, I drew to Mr Illert's attention, in connection with matters N6001 of 1999 and N6006 of 1999, Ms Moran's apparent failure to comply with s61(1) of the Act. I suggested the appropriate course might be to dismiss both applications, leaving it to her to institute one or more fresh applications, if she wished and could obtain the necessary authorisation. Mr Illert resisted this suggestion, in relation to N6001 of 1999, on the basis that the dismissal of the proceeding would be fatal to Ms Moran's chances of preventing acquisition by the Minister of any native title rights attached to the Ben Bullen land. However, recognition by the Court of a native title interest in the land would not prevent acquisition of that interest by compulsory process under the Forestry Act; the only result of recognition would be to facilitate a compensation claim. But compensation would, in any event, be available to the holders of native title rights that were acquired by compulsory process. I do not think the threatened acquisition affords a reason for declining to take whatever course is otherwise appropriate.
45 Order 20 rule 2 of the Federal Court Rules provides:
"2(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule (1)."
The power conferred by Order 20 rule 2 ought to be cautiously exercised. It will not, ordinarily, be appropriate summarily to dismiss a proceeding that is even arguably justifiable. However, in a clear case, there is every reason to exercise the power, and thereby free other parties from the burden of the proceeding. Importantly, the power conferred by Order 20 rule 2 is not dependent upon an application by a party. The Court may exercise the power of its own motion; although of course the Court must always warn the parties of the contemplated action and give them an opportunity to present submissions in relation to it. These requirements were satisfied in the present case.
46 I do not think para (a) or para (b) of rule 2(1) has any application to this case. However the term "abuse of the process of the Court" has a wide connotation. It is often applied to a proceeding instituted for a collateral or improper purpose. But the term is not so confined. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ said:
"…it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail."
47 It seems to me that proceedings N6001 of 1999 and N6006 of 1999 are clearly foredoomed to fail. If either of them went to trial, the proceeding would have to be dismissed on the basis that it was not well-commenced; there had been no authorisation as required by s61(1) of the Act. Consequently, the power conferred by Order 20 rule 2 is enlivened.
48 Having given the matter deep consideration, I have reached the conclusion that I ought to exercise the power conferred on me by Order 20 rule 2. The obtaining of proper authorisation of a claimant application is a fundamental requirement of the Native Title Act. It is important that those who come to the Court asserting a native title right, with all this involves in terms of effort and expense to other parties and the Court itself, should be properly authorised to make the claim. As I have explained, this does not necessarily mean the applicant must be individually authorised by each member of the claimant group. It will be enough that the applicant has been authorised to make the claim in accordance with a process of decision-making recognised under the traditional laws and customs of the claimant group. In meritorious cases, that is unlikely to be an onerous requirement. Traditional laws and customs are likely to exist in cases where the claimant group still maintains a vigorous communal life.
49 The present cases illustrate the importance of proper authorisation. In order to establish proper authorisation, Ms Moran would have had to identify by name all the people within the claimant group, or a collective body able to speak for the group as a whole. If she had done either of these things, Mr Allen could have explored, and, possibly, ultimately demonstrated, the extent of his support as a replacement applicant. However, because the membership and/or leadership of the group was not properly defined, he has been unable to do this. The Court is left in the position of finding that Ms Moran and Mr Allen each apparently enjoy a measure of support from people who claim to fall within the group, but being unable to say which (if either) of them is entitled to act for the group as a whole. The failure of Ms Moran to comply with s61(1) in relation to N6001 of 1999 and N6006 of 1999 has led to a situation of embarrassment in each proceeding. In deciding to exercise the discretion given to me by Order 20 rule 2, I am influenced by the practical advantages that will result from tidying up the matter of authorisation and by the knowledge that dismissing the present proceedings will not prevent the making of one or more fresh applications that comply with the requirements of the Act.
50 During discussion about the possibility of orders dismissing matters N6001 of 1999 and N6006 of 1999, I raised with the parties the position in connection with N6008 of 1999. As previously mentioned, this is not a claimant application; it is an appeal against the Registrar's refusal to register the application numbered in this Court as N6001 of 1999. All parties agreed that, if N6001 of 1999 was to be dismissed for failure to comply with a requirement of the Act, the Registrar's decision would have to be regarded as correct; accordingly, the appeal would have to fail and it would be appropriate also to dismiss that proceeding. I agree with this analysis of the situation.