Pappin on behalf of the Muthi Muthi People v Attorney-General of New South Wales

Summary of procedural history 7 On 28 November 2014, Gary Pappin and Jean Charles as joint applicants (the applicant) filed an application for determination of native title pursuant to s 61(1) of the NTA over approximately 30,000 square kilometres proximate to the NSW/Victorian border in the vicinity of Balranald and Ivanhoe, including areas of the Darling River. This was the sixth application made in that area under the NTA by Mr Pappin and others on behalf of the Muthi Muthi People. All previous proceedings have been dismissed. 8 On 20 July 2015, the applicant was granted leave to file an amended native title determination application, which the applicant filed later that day. 9 On 27 November 2015, a delegate of the Registrar of the NNTT determined, pursuant to s 190A of the NTA, not to accept the applicant's 20 July 2015 native title determination application for registration. 10 On 7 December 2015, in a separate proceeding, the applicant applied to this Court to review the delegate's 27 November 2015 registration decision (file number NSD1603/2015). The review application was dismissed on 9 February 2017: see Pappin No 1. 11 On 18 July 2017, the Court set aside a notice to produce served by the applicant (see Pappin No 2). 12 On 23 February 2017, the Court ordered the parties to file submissions as to whether the 20 July 2015 native title determination application should be dismissed under s 190F(6) of the NTA. Determination of this issue was rendered unnecessary by the applicant filing an amended application for determination of native title on 1 August 2017, with the Court's leave. The Court ordered the parties to file written submissions as to whether the Court should dismiss the 1 August 2017 application under s 190F(6) of the NTA. 13 On 29 August 2017, the Court ordered that the proceedings be adjourned until the Registrar handed down a decision whether or not to register the applicant's native title determination application filed on 1 August 2017. On 8 February 2018, a delegate of the Registrar determined that the application filed on 1 August 2017 should not be accepted for registration (see NC2014/002 for the delegate's reasons). 14 Following the registration decision, the applicant did not file, within the prescribed 42 day deadline, either an application for the Court to review the delegate's registration decision of 8 February 2018 (see NTA, s 190F(1) and Federal Court Rules 2011 (Cth), r 34.109), nor an application for the NNTT to reconsider the native title claim (see NTA, s 190E). 15 On 10 April 2018, the Court ordered the parties to file any further evidence and submissions as to whether or not the amended application dated 1 August 2017 should be dismissed pursuant to s 190F(6) of the NTA.

The parties' submissions summarised 16 The first respondent, the Attorney-General of New South Wales, stated that he did not oppose the Court's motion that the native title determination application be dismissed. He submitted that s 190F(6) of the NTA appeared to provide for a wholly self-contained power of dismissal, citing Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 (George) at [39] per Logan J. It was further submitted that the word "likely" in the phrase "not likely to be amended" in s 190F(6)(a) will involve a consideration of "…whether there is a real chance not a mere possibility that an application will be amended in a way that will lead to a different outcome once considered by the Registrar", citing Champion v State of Western Australia (No 2) [2011] FCA 345 (Champion) at [12] per McKerracher J, George and Strickland v Western Australia [2010] FCA 272 (Strickland). 17 The Attorney-General accepted that the applicant could request the Court to continue with a determination of their native title determination application in the absence of that application being accepted for registration. Indeed, the applicant had requested that this be done. The Attorney-General submitted that the Court should consider: (a) whether the amended native title determination application should be dismissed on the Court's own motion; (b) that the Registrar had determined that the further amended native title determination application should not be registered as it failed to satisfy all the conditions in s 190B of the NTA; and (c) the operation of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act), which mandates the Court to determine whether continuation of the proceedings will facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. Relevant factors were said to include "the efficient use of the judicial and administrative resources available for the purposes of the Court", "the disposal of all proceedings in a timely manner", and "the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute". These were submitted to be important factors in light of the Registrar's opinion that the native title determination application filed on 1 August 2017 had not satisfied all the conditions of ss 190B and 190C of the NTA, including the prima facie threshold in s 190B(6). 18 The Attorney-General submitted that it was open to the Court to dismiss the native title determination application, because: (a) the Registrar did not accept the claim for registration because, in her opinion, the application did not satisfy all the conditions of s 190B (s 190F(5)(a)(i)); (b) the Court could be satisfied that all avenues had been exhausted without registration of the claim, unless the Court belatedly granted leave for an application for review under s 190F (s 190F(5)(b)); (c) the application has not been amended since consideration by the Registrar (s 190F(6)(a)); (d) it does not appear likely that the application is to be amended in a way that would lead to a different outcome once considered by the Registrar (s 190F(6)(a)); and (e) there does not appear to be any other reason why the application in issue should not be dismissed (s 190F(6)(b)). 19 In its written submissions filed on 4 May 2018, the second respondent, NTSCORP Limited (NTSCORP), submitted that the proceedings should be dismissed pursuant to s 190F(6). It submitted that the conditions in s 190F(5) were met, namely, the amended application had not been accepted for registration and all avenues for review have been exhausted by reason of the effluxion of time, without the registration of the claim. NTSCORP's written submissions were filed three days late, a matter which was relied upon by the applicant in support of the submission that NTSCORP should be removed as a party in the proceeding (see further below). 20 Section 190F(6)(a) was also said to have been satisfied insofar as no further amendment of the native title application had been made, nor was any foreshadowed. As to the question of whether the application is likely to be amended so as to lead to a different outcome, NTSCORP submitted that the applicable test is whether there is a real chance, not a mere possibility, that an application will be amended in a way that would lead to a different outcome once considered by the Registrar, citing Champion at [12] and George at [43]-[53]. 21 Although the NTA is silent as to what matters should be taken into account in assessing the relevant likelihood, NTSCORP submitted that relevant factors may include the following interrelated matters: (a) the reasons given for refusal of registration; (b) the extent to which amendments addressing the reasons for refusal might be possible and within the control of the applicant or conversely require the participation of others; (c) in a case requiring participation or action of any other person, the probability of that participation being forthcoming or the action being taken; (d) the authority, capacity and inclination of the applicant (and of any other required participant) to take the steps necessary to make amendments capable of addressing the reasons for refusal; (e) the resources and assistance available to the applicant (and of any other required participant) to take the steps necessary to make amendments capable of addressing the reasons for refusal; and (f) the opportunities already afforded to the applicant to initiate and/or take steps to make amendments addressing the reasons for refusal and any facts or circumstances explaining why initiatives or steps have not been taken or have not succeeded. 22 NTSCORP submitted that the delegate's reasons for refusing to register the 1 August 2017 native title application mostly relate to an absence or insufficiency of material as to the state of affairs in the claimed area during the period from sovereignty to the late 20th century. These are matters which predominantly occurred before the lifetimes of presently living members of the claimant group, and about which living witnesses are less likely to be able to provide evidence. 23 NTSCORP noted the present form of application included a substantial number of annexures, reports, historical records and the like. In the absence of any explanation by the applicant as to how the materials already provided might be materially supplemented and improved upon, it was submitted to be reasonable to assume that the current materials represent the best "evidence" available to the applicant and that further material is unlikely to come to light. This weighs against the likelihood of any future amended application presenting a more persuasive case and being accepted for registration, so it was submitted. 24 Further, NTSCORP submitted it is also likely that historical or ethnographic research, investigation and/or analysis will be required to locate and retrieve any relevant information and materials relating to the conditions during past generations. This will likely require the assistance of third-parties. The applicant does not have the support of a representative body, and appears to have only had sporadic assistance and support. NTSCORP argued that in the absence of a credible indication that necessary assistance and cooperation will be available, the scope of matters beyond the immediate control of the applicant weighs against the likelihood of any amended application improving the applicant's prospects of securing registration. 25 Finally, by reference of the procedural history summarised at [7]-[15] above, NTSCORP submitted that a great deal of resources and public money have already been committed to these proceedings by many parties, that the proceedings have been and remain poorly conceived, articulated, managed and presented, and that there is unlikely to be any alternatives for the applicant which would not merely prolong the same unsatisfactory state of affairs. Conduct of proceedings to date was said to be contrary to the overarching purpose and objectives in s 37M of the Federal Court of Australia Act. NTSCORP submitted that in these circumstances, it was appropriate for the Court to dismiss the present application under s 190F(6) of the NTA. 26 In their written submissions in reply, the applicant submitted that NTSCORP should be removed as a respondent. The applicant submitted that under s 203FE of the NTA, NTSCORP's role is to assist, rather than to oppose, the applicant in circumstances where there is no conflict of interest between the applicant's claim and any other current native title claim. The applicant claimed that NTSCORP is a vexatious litigant who unnecessarily prolonged proceedings and did not assist the Court. It was also submitted that the "opinionated submissions" of NTSCORP should not be allowed to influence the Court. In his oral submissions, Mr Pappin also submitted that the Court should take into account the late filing and service of NTSCORP's outline of written submissions. 27 The applicant made lengthy written submissions as to why the delegate's decision dated 8 February 2018 was incorrectly decided. They included claims that: (a) the delegate's conclusion that the native title determination application failed to satisfy s 190B(5)(a) of the NTA was based on incorrect information, although particulars of the claimed "incorrect information" was not specified. The applicant claimed that this demonstrated that the delegate could not be relied on to provide accurate information to the Court, and was a reason why the claim should proceed to determination without registration; (b) in determining that the applicant's claim did not satisfy s 190B(5) of the NTA, the delegate applied a substantially higher standard of proof than was required, and a higher standard than other recent registration decisions. The applicant relied on observations by Mansfield J in Northern Territory of Australia v Doepel [2003] FCA 1384 (Doepel) at [17] and by Barker J in Stock v Native Title Registrar [2013] FCA 1290 (Stock) at [64]-[66] to support this submission. The applicant also referred to specific paragraphs of the delegate's decision regarding s 190B(5) and claimed that the reasoning and/or conclusions were incorrect; (c) the delegate should have found that the application satisfied the prima facie test in s 190B(6), as prima facie "means only the most cursory, initial impression"; and (d) the delegate's adverse findings on the physical connection requirement in s 190B(7) were inconsistent with previous decisions. The applicant attached a document described as a comparison table between the evidence presented in Danggan Balun (Five Rivers) People v State of Queensland (file number QUD331/2017) which was accepted for registration, and that of the Muthi Muthi application. Reference was also made to five other registration decisions for comparative purposes. Further, the applicant submitted that "traditional decision making process decisions" can only be made by Muthi Muthi elders who are "currently residing within the Native Title Claim area", and, as the applicant was such an elder, both the "traditional" and "physical" requirements of s 190B(7) were satisfied.

The applicant's adjournment application 28 On the morning of the scheduled hearing Mr Pappin emailed the Court and sought an adjournment of the hearing on the basis that Mrs Charles was hospitalised and was very unwell. Mr Pappin said that he was unemployed and could not afford to travel to Sydney for the hearing. Mr Pappin pressed his application when he appeared by way of telephone at 10:15am. After hearing from the parties, the Court refused the application. In doing so, it took into account the long history of the proceedings; the fact that although Mrs Charles was an applicant, Mr Pappin had always previously appeared and represented both Mrs Charles and himself as the applicant; that the parties had all provided detailed written submissions; that the respondents had incurred considerable legal costs and were willing to proceed with the hearing and that Mr Pappin was able to participate by way of telephone.

Consideration and determination 29 The objectives and principles of s 190F(6) were helpfully summarised by McKerracher J in Whalebone v State of Western Australia [2008] FCA 1678 at [1] to [8] as follows: 1 Section 190F(6) of the Native Title Act 1993 (Cth) (the NTA), introduced in the amendments made to the NTA in July 2007, confers upon the Court a discretionary power to dismiss an application, either on the application of a party or on its own motion, if: (a) the Court is satisfied that the application has not been amended since consideration by the Native Title Registrar (the Registrar) and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar, and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 2 Pursuant to s 190F(5), the new dismissal power applies where: (a) the Registrar does not accept the claim for registration because: (i) it does not satisfy all the merit conditions of the registration test; or (ii) it was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and (b) the Court is satisfied that the avenues for reconsideration and review have been exhausted without registration of the claim. 3 Order 78 r 12 of the Federal Court Rules [now r 34.109] provides an application for review must be filed within 42 days of the notification of the Registrar's decision. 4 The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 provides an insight into the rationale behind the introduction of the new dismissal power: Currently, while unregistered applications do not receive certain procedural benefits that attach to registered claims (such as the right to negotiate), unregistered applications may still proceed to determination. There is presently no requirement on claimants to amend their claim to meet the requirements of the registration test. The amendments inserted by item 73 are intended to provide a greater focus on the responsibility of applicants to take steps to improve the quality of their claims, recognising that poor quality claims are a burden on the native title system. 5 If the Court considers the application has been amended since consideration by the Registrar or is likely to be amended in a way that would lead to a different outcome once considered by the Registrar, it would be appropriate for the Court to await the outcome of the reapplication of the registration test before considering whether to dismiss the application. 6 Pursuant to s 190F(6) of the NTA, the Court may consider any 'other reason' why an application should not be dismissed. The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 suggests that the criterion set out in s 190F(6): ... will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered. 7 By way of example, the Explanatory Memorandum suggests that the Court may consider that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (para 4.331). 8 As to the principles applicable to how s 190F(6) should operate, I refer to and respectfully adopt, (without repeating), the recent analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518. 30 Following the applicant's second failure to meet the registration test on 8 February 2018, s 190F(5)(a) has been satisfied. As the applicant did not apply for reconsideration by the NNTT by the relevant deadline, and did not apply to this Court for review of the second registration decision by the relevant deadline, s 190F(5)(b) has also been satisfied. Thus, these particular preconditions for dismissal under s 190F(6) have been met. 31 As to s 190F(6)(a), the application in issue has not been amended since the delegate's decision of 8 February 2018. Nor were any specific amendments foreshadowed by the applicant. As to whether the Court can be satisfied that the application is not likely to be amended in a way that would lead to a different outcome, the Court accepts that the factors proposed by NTSCORP as summarised at [21] above are relevant factors in these proceedings. For the reasons set out at [22]-[25] above, and in the absence of any contrary evidence from by the applicant, there is not a real chance that the application will be amended in a way that would lead to a different outcome once considered by the Registrar. 32 It is also relevant to consider the delegate's reasons for refusing to register the claim. The delegate determined that the following conditions were not met in order to register the amended application: (a) section 190B(5): the delegate was not satisfied of the factual basis for the claimed native title, specifically: (i) section 190B(5)(a): the delegate found that there was insufficient "…information to demonstrate how the contemporary association of Muthi Muthi people has its origins in the preceding generations' association of the area", and insufficient information on "… the intervening years between sustained settlement and the mid to late 20th century" (at [68] and [71]); (ii) section 190B(5)(b): the delegate found that there "was little evidence…about the intergenerational transmission of laws and customs" and that there "…is no discussion of the operation of the contemporary society bound by laws and customs…" (at [88] and [91]); (iii) section 190B(5)(c): the delegate found that she was not satisfied that "…the native title claim group has continued to hold the native title in accordance with its traditional laws and customs" (at [96]). (b) section 190B(6): the delegate was not satisfied, prima facie, that at least some of the native title rights and interests claimed could be established as the factors in s 190B(5) were not satisfied; (c) section 190B(7)(a) or (b) : the delegate found that "…the application lacks the support of a factual basis that the native title claim group continues to acknowledge and observe its traditional laws and customs"; and (d) section 190C(2): the delegate found that the map accompanying the application did not meet the requirements of s 62(2)(a)(i) showing the external boundaries of the area covered by the application. 33 All of the deficiencies identified above, except for the last, are deficiencies that go to the merits of the claim rather than purely procedural matters. Importantly, the delegate determined that the applicant had failed to make out a prima facie case that the native title rights and interests claimed in their application could be established. It would be futile for the Court to allow the 1 August 2017 application to proceed to a determination of native title in these circumstances. As Barker J stated in Sambo v State of Western Australia [2015] FCA 954 (Sambo) at [31]: The simple fact is that the relevant provisions of the NTA enable an apparently unmeritorious application - that is to say, one which has failed the registration test and in relation to which there is no pending reconsideration or judicial review - to be dismissed. The statutory provision recognises that such applications should not clog up the court system. 34 The applicant has not foreshadowed any further amendments to the application to address any of the several deficiencies identified in the delegate's decision. Rather, the thrust of the applicant's submissions as to why their application should not be dismissed is that that the delegate's decision was incorrect. Those submissions attract little, if any, weight. If the applicant wished to challenge the delegate's registration decision, it was open for them to file an application for the Court to review the delegate's decision, or to make an application for the NNTT to reconsider the native title claim. As stated above, no such application was filed within the 42 day deadline prescribed by r 34.109 of the Federal Court Rules 2011 (Cth) and s 190E of the NTA respectively. Nor did the applicant seek the Court's leave to file any such application after the deadline had expired. 35 The statutory scheme is such that an applicant who believes that a decision such as that made by the delegate is wrong should exercise the available review or reconsideration rights and not circumvent these procedures by raising the alleged incorrectness of the decision as part of "any other reason" under s 190F(6)(b). The structure of s 190F supports this approach. In particular, it is made plain in s 190F(5)(b) that one of the preconditions to the Court's power to dismiss an application is that the Court is satisfied that all available reconsideration or review avenues have been exhausted without the claim being registered. This strongly suggests that those avenues should be used and exhausted by an applicant prior to the Court's consideration of an application to dismiss the claim. Those statutory avenues should not be circumvented or marginalised by an applicant determining not to pursue any of them and rather raise issues concerning the correctness of the delegate's decision within the framework of a proceeding under s 190F(6). 36 In any event, even if this is not the correct view of the statutory scheme, I would reject the applicant's challenges to the correctness of the delegate's second decision. In particular, I consider that it was reasonably open to the delegate to make the following findings which are impugned by the applicant. (a) First, the native title determination application failed to satisfy s 190B(5)(a). This finding was not based on "incorrect information" as alleged by the applicant but rather, it was based on the absence of information to support the applicant's claimed native title. In particular, the applicant: (i) failed to provide information demonstrating how the contemporary association of Muthi Muthi People has its origin in the preceding generations' association with the area (at [69]); (ii) failed to provide material demonstrating how the association with the claim area of the generations of the applicant group has its origin in the preceding generations' association with the area (at [68]); and (iii) failed to provide information demonstrating an association with the claim area of the generations of Muthi Muthi People in the period from sustained settlement to the mid to late 20th century (at [71]). (b) Secondly, the amended claim application failed to satisfy s 190B(5). I do not accept the applicant's submission that the delegate applied a higher standard of proof than was required. The delegate applied the correct legal test (as outlined by Barker J in Stock at [64]-[66] and Mansfield J in Doepel at [17]) in determining that she was not satisfied as to the existence of a sufficient factual basis to support the applicant's claimed native title, due to the applicant's failure to provide relevant material. In addition, it was reasonably open to the delegate to conclude that ss 190B(5)(b) and (c) were not satisfied because the applicant: (i) failed to show sufficiently that a pre-sovereignty society, under whose laws and customs native title rights and interests in the application area were possessed, has continued throughout the period since the assertion of sovereignty (at [81]); (ii) failed to provide sufficient support for the assertion that the claimant group's traditional laws and customs exist, in the absence of explanation of the relationship between the present laws and customs of the applicant group and those acknowledged and observed at the time of sovereignty or European settlement (at [92]); and (iii) failed to establish a sufficient factual basis to support the assertion that the applicant group continues to hold native title in accordance with its traditional laws and customs (at [94], [101]). (c) Thirdly, the prima facie threshold in s 190B(6) was not met because the factors in s 190B(5) were not satisfied (at [101]-[102]). The applicant did not provide any authority to support their assertion that the prima facie test in s 190B(6) requires "only the most cursory, initial impression". (d) Fourthly, the physical connection requirement in s 190B(7) was not satisfied because the amended application lacked the support of a factual basis that the native title claim group continues to acknowledge and observe its traditional laws and customs, as was concluded with respect to s 190B(5) (at [105]). This conclusion was reasonably open to the delegate, although the delegate acknowledged that "Mr Charles in his affidavit provides information that goes some way to demonstrating his traditional physical connection with parts of the claim area" and "[o]ther attachments to the application also provide support for the proposition that at least one member of the native title claim group has or has had the requisite physical connection". 37 When the preconditions in s 190F(5) exist, the terms of s 190F(6)(a) and (b) become the relevant provisions in considering dismissal of a claimant application. As Barker J stated in Sambo at [32]-[35]: 32 When any such application or motion is made for dismissal, the question is whether the claimant application should be dismissed. At that point the terms of s 190F(6)(a) and (b) come into play. It is then for an applicant, if it wishes to resist the dismissal, to put evidence before the Court that will lead to the Court not being satisfied that the application has not been amended since consideration by the Registrar and is not likely to be amended in a way that would lead to a different outcome once reconsidered by the Registrar; and in relation to the question whether there is no other reason why the claimant application should not be dismissed. 33 In that regard, there is a practical onus on an applicant to cause evidence to be supplied to the Court that may lead to the Court not being satisfied about those matters and not forming that relevant opinion: see Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163 at [66]. 34 In effect the proceeding now before the Court is in the nature of a show cause proceeding. The applicant has the opportunity to produce materials to show the Court that, notwithstanding the satisfaction of the preconditions to the exercise of the dismissal power, the application is likely to be amended in some way that would lead to a different outcome and/or there is another reason why the application should not be dismissed. 35 A practical burden falls on the applicant in this case therefore to deal with the different bases upon which the amended application failed the registration test and to show how a further amendment may be possible which would lead to a different outcome on a reconsideration; or that there is some other reason why the application should not be dismissed. 38 The applicant failed to provide any evidence that a further amendment would be made to the application for native title which would lead to a different outcome on a reconsideration by the Registrar. In the absence of any evidence or material to the contrary, I find it unlikely that the deficiencies in the claimant application as identified by the delegate will be remedied. 39 In my view, there is no other reason within the meaning of s 190F(6)(b) why the application should not be dismissed. 40 Finally, the Court does not accept the applicant's submission that NTSCORP is a vexatious litigant and was improperly joined as a respondent. On 4 December 2015, NTSCORP lodged an application to be joined as a party in the substantive proceeding (NSD 1248 of 2014), which was opposed by the applicant. The Court made separate orders on 16 March 2016 that NTSCORP be joined as a respondent in both the substantive proceeding and in the related review proceeding (NSD 1603 of 2015). To date the applicant has not sought leave to appeal those interlocutory orders. Those interlocutory orders stand. There is no material before the Court to support the applicant's serious allegations that NTSCORP has acted improperly or vexatiously. The applicant's attack on NTSCORP appears to be based on the mere fact of NTSCORP's opposition to the applicant's case. As these reasons demonstrate, that opposition was soundly based and responsibly advanced by NTSCORP. Although NTSCORP was three days late in filing its outline of written submissions in respect of the current application, Mr Pappin did not suggest that the applicant was prejudiced by this short delay. It appears that Mr Pappin had at least 11 days to consider NTSCORP's written submissions before he filed the applicant's outline of written submissions.

Conclusion 41 For these reasons, the amended claimant application should be dismissed pursuant to s 190F(6) of the NTA. There should be no order as to costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.