Phillips v State of Western Australia

THE FIRST RESPONDENT'S SUBMISSIONS AND MY REASONING 6 The first respondent tendered a copy, certified pursuant to s 155 of the Evidence Act 1995 (Cth), of the reasons for the Delegate's Decision. In summary, the first respondent submitted that I should, pursuant to s 86 of the Act, adopt the Delegate's findings and decision as amply indicating that in its present form the application (i.e. the application to this Court for a determination of native title) cannot succeed. The Delegate's findings and decisions had, so it was submitted, found fatal defects in the application. It would be wrong, so the first respondent contended, to allow the application to proceed as it was "manifestly groundless". If it were allowed to proceed it would involve useless expense - all being references to the tests explained in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 and 138.

THE STATUTORY FRAMEWORK 7 Part 3 (and in particular Division 1 of that Part) of the Act relevantly provides for native title applications to be made to the Federal Court. Until the 1998 amendments such applications were lodged initially with the National Native Title Tribunal and were only referred to the Court if the parties could not reach agreement about the terms of a determination to be made by the Tribunal. As I have mentioned above, that was the path by which this application came to the Court. Section 62 (which falls within Division 1 of Part 3) requires that what is known as a claimant application must be accompanied by an affidavit sworn by the applicant. In summary, that affidavit requires an applicant to swear to his or her belief that the native title rights and interests claimed have not been extinguished and also his or her belief to various other matters. The application must also contain certain specified details including [see s 62(2)(e)]: "(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that: (i) the native title claim group have, and the predecessors of those persons had, an association with the area; and (ii) there exist traditional laws and customs that give rise to the claimed native title; and (iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;" 8 Part 4 of the Act confers jurisdiction on this Court to hear and determine applications that relate to native title. That jurisdiction is expressed as being exclusive of the jurisdiction of all other courts except the High Court. Part 7 of the Act relates to the Register of Native Title Claims. The principal significance of a native title claim being and remaining on the Register of Native Title Claims is that it gives an applicant standing to participate in negotiations and/or arbitration about proposed further acts - see the general provisions relating to the right to negotiate contained in Subdivision P of Part 2 of the Act. Thus all applications for a native title determination (including those pending in the Tribunal at the time when the Native Title Amendment Act 1998 came into force) are proceedings in this Court - see ss 13(1) and 61 of the Act and Part 3 Item 6(1) of the Amendment Act. Section 63 of the Act requires the Registrar of the Federal Court, as soon as practicable, to give to the Native Title Registrar a copy of any application filed in the Court together with a copy of any affidavit or prescribed documents that accompany the application. When that occurs it can be seen that a native title determination application takes two separate courses. One course leads to a native title determination (for or against the applicant) by this Court. The other course leads either to registration or non-registration on the Native Title Register, with the result, as I have mentioned, of conferring or not conferring, as the case may be, a right to negotiate (and to participate in arbitration) on the applicant or applicants. 9 Section 190A(6) provides that the Native Title Registrar must accept the claim for registration (on the Register of Native Title Claims) if the claim satisfies all of the conditions in ss 190B and 190C but, in any other case, must not accept the claim for such registration. Sections 190B(5) and (6), which contain the conditions relevant to this matter, provide as follows: "Factual basis for claimed native title (5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions: (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. Prima facie case (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established. Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a "right to negotiate" process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a "right to negotiate" process)." 10 Section 82(1) of the Act provides that this Court is bound by the rules of evidence, except to the extent that the Court otherwise orders. Section 86 of the Act is in the following terms: "86 Evidence and findings in other proceedings Subject to subsection 82(1), the Federal Court may: (a) receive into evidence the transcript of evidence in any other proceedings before: (i) the Court; or (ii) another Court; or (iii) the NNTT; or (iv) a recognised State/Territory body; or (v) any other person or body; and draw any conclusions of fact from that transcript that it thinks proper; and (b) receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and (c) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v)." 11 The first respondent contends that I should exercise the power conferred by s 86(c) to adopt the Delegate's Decision, which I have summarised above, and in particular his conclusion that, prima facie, none of the native title rights and interests claimed in the application can be established, that I should, on that basis, hold that the application discloses no reasonable cause of action, on the usual tests, and that I should thus dismiss the application. In oral submissions, Mr T A Creewel, counsel for the first respondent, submitted that the Registrar's task was to be satisfied as to a range of matters which have a bearing on whether a claim has a reasonable prospect of ultimate success in this Court. In its motion the first respondent asked the Court to adopt "the Registrar's decision". In its written submissions it asked that I adopt the Delegate's findings as well as his decision [tracking the language of s 86(c)]. I shall treat the motion as having been amended to include reference to the Delegate's findings, but, as will be seen below, that makes no difference to the outcome of the motion. 12 The first respondent first directed my attention to s 146 of the Act (which confers a discretion on the Tribunal in very similar terms to s 86) and an instance upon which the National Native Title Tribunal used its powers under s 146 - see NNTT Applications WO 96/96 (Nyungah) and WO 96/101 (Harris Family) Terry Cornwall & Ors Minnie van Leeuwen & The Harris Family and The State of Western Australia and Balde Exploration Consultants Pty Ltd & Desmond James Hockley, 12 February 1996, The Hon C J Sumner. The first respondent conceded that this decision did not offer much guidance to the Court on the issue raised by the motion. Because the circumstances in that matter were so different to the circumstances in this matter, I derive no assistance from the Tribunal's decision. In fairness to the Tribunal, I should note that that matter involved the Tribunal (in an expedited procedure hearing) adopting findings made previously by the Tribunal, differently constituted, in an earlier expedited procedure hearing for an unrelated future act in the same native title claim area. 13 The first respondent advanced six main reasons why I should accede to that part of its motion which concerned the adoption of the Delegate's findings and the Delegate's Decision. I shall deal with them below in sequence. But I am inclined to think that the motion should be approached first by considering the nature of the task which the Court carries out when hearing and determining a strike-out motion. The following extract from the reasons for judgment of Hill J in a fairly recent Full Court decision, Turner v Leda Commercial Properties Pty Ltd (2000) 171 ALR 17 at 35 is one which I find most useful: "[89] The principles applicable to summary dismissal are not in dispute. The power is not one which should lightly be exercised. It should be exercised only in a clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91. In a case such as the present the power should not be exercised unless it is clear there is no real question to be tried and that the case for an applicant is clearly untenable and cannot possibly succeed. Put in another way, the power would only be exercised where the case sought to be adduced by the applicant is one that is hopeless and bound to fail: cf General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Faessler v Neale (Drummond J, 20 July 1994, unreported); Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 124 ALR 685. [90] In a superior court where a plaintiff is required to plead his or her case it is often said that a claim will be struck out where, accepting that the evidence is as pleaded with all reasonable inferences favourable to the plaintiff being drawn, the case is nevertheless one which is unarguable: see, for example, the comments of Barwick CJ in General Steel (at 129). In some cases the application may be made at a later time than the close of pleadings as, for example, after the whole of the plaintiff's evidence is filed. Yet in other cases, evidence may be adduced on the hearing of the application to strike out. In all these cases, however, an action to strike out will not succeed where a real question of fact is to be determined: Dey (at 91) per Dixon J and cf Webster v Lampard (1993) 177 CLR 598 at 602-3; 116 ALR 545, a case dealing with the analogous case of summary judgment." 14 I now turn to the six main reasons advanced by the first respondent why, on its motion, I should adopt the Delegate's findings and the Delegate's Decision. (i) Saving of time and resources 15 The first respondent relied upon that part of the Explanatory Memorandum for the Native Title Bill 1993 which related to clause 79 in that Bill. Clause 79 was the predecessor (in a more limited form) to s 86. The relevant passage in the Explanatory Memorandum read as follows: "This means that the Court can save time or resources by choosing not to reconsider matters that have already been canvassed in earlier proceedings." 16 I do not think that this is a factor which I should take into account when deciding whether to adopt the Delegate's Decision for the purposes of hearing a motion to strike-out the application on the basis that it does not disclose a reasonable cause of action. The motion is opposed. If the motion were successful it would have the effect of denying the applicants their day in court. As I see it, the primary function of the Court in hearing and determining such a motion is to apply the traditional tests explained in Dey at 91 and General Steel Industries Inc at 128-130. In respect of non-controversial matters, there might well be a saving of time and resources if the Court were to exercise its discretion to adopt particular findings or decisions of a court person or body of a kind mentioned in s 86. There might also be cases where that would be an appropriate exercise of the discretion even in relation to contentious matters. That would depend upon the subject matter of the proposed adoption and the circumstances of each particular matter. 17 However, in deciding whether to exercise the discretion in the present matter, I place no weight on this factor. The application of the traditional tests to this strike-out motion will involve an insignificant expenditure of time and resources. If, by that process, a case is seen to be manifestly groundless, it is then that time and resources can be saved by striking it out, because to allow it "to stand would involve useless expense" - see General Steel Industries Inc at 129. (ii) That the duty to investigate and adjudicate upon the merits of native title claims has been "removed from the Court" 18 The first respondent contended that ss 63 and 64(4) when read with s 190A(1) of the Act specifically remove from the Court the duty to investigate and adjudicate upon the merits and procedural correctness of claims contained within applications for determinations of native title. It would be contrary, so it was submitted, to the scheme of the Act if, for the purposes of a strike-out application which was said to be based on the same issues which the Registrar had the responsibility to investigate, the Court "had to ignore the Registrar's findings and decisions and revisit the identical issues". 19 I see nothing in the sections referred to immediately above which removes from the Court its duty to adjudicate upon the "procedural correctness" and the merits of a native title application brought before it. Nor would I construe the relevant provisions as requiring the Court to ignore the Registrar's findings and decisions for the purposes of a strike-out application. However, for the principal reason which I outline below, I do not think that the issues before the Registrar and the issue before the Court on the hearing of the present motion can be regarded properly as the same issues. The difference arises from the two different duties which are imposed on the Registrar and the Court. (iii) Consistency of decision-making; 20 The first respondent submitted that unless the Court adopted the Delegate's Decision there would be an undesirable inconsistency between the Delegate's Decision and the Court's refusal to strike-out the application. 21 The basic problem with this submission (and thus with the whole of the first respondent's motion) is, as I see it, twofold. First, the Registrar or his delegate (I shall use the terms interchangeably) is vested by the Act with, relevantly, a different duty to that which falls upon the Court deciding a strike-out motion. The Registrar's task, in terms of s 190B(5), is to be satisfied that the factual basis on which the native title claim was asserted was sufficient to support that assertion. In particular the Registrar's task is to be satisfied (so far as is relevant in this matter) that the factual basis supports the assertions that the traditional laws acknowledged by, and traditional customs observed by the native title claim group, exist that give rise to the claim and that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs. What is relevantly required in the application when lodged with the Court is "… a general description of the factual basis …" on which these assertions are made - see s 62(2)(e). In this matter the Registrar's delegate embarked upon an assessment of the strength of the evidence put before him by the applicants and others. The Registrar's task, in terms of s 190B(6) is to consider whether, prima facie, at least some of the native title rights and interests could be established. In this matter, for the same reasons as he gave for not being satisfied with the evidence put before him for the purposes of s 190B(5), the delegate found there was no such prima facie case within the meaning of s 190B(6). By contrast, in the context of a strike-out motion on the ground that no reasonable cause of action is disclosed [Order 20 rule 2(1)(a) - the ground upon which the first respondent relies in this motion] the Court assumes the factual allegations to be true. Normally the relevant factual allegations would be found in a statement of claim or, in the absence of pleadings, an affidavit. Here, I consider that the relevant factual allegations are those contained in the further amended application and the affidavit accompanying that application. In this case the further amended application is a composite document comprising the amended application filed on 18 February 1999, the amendments indicated in a document entitled "Draft Native Title Determination Application" filed on 3 June 1999 and the affidavit sworn by the applicant Mr N A Phillips on 23 February 1999 and filed on that date. To dispose of this motion it is sufficient, in my view, to have regard only to the further amended application. Assuming that all the facts asserted in that application are made out at trial, and in particular the annexure described as "Schedule F" which can be found in the document filed on 3 June 1999 at p 7.1 onwards, I do not think that it can be said that the application should be struck out as disclosing no reasonable cause of action. The Registrar embarked upon a weighing up of the evidence advanced by the applicants in the light of submissions made by parties opposed to the applicants. That is a process akin to what will take place at the trial of this application, it is not the function of a Court when deciding whether to strike out an application as not disclosing a reasonable cause of action. (iv) The Delegate's Decision is unchallenged (v) The application has not been amended since the Delegate's Decision 22 The first respondent relies upon the fact that the Delegate's Decision is unchallenged by way of an application for review and that the application has not been amended since the Delegate's Decision. 23 Those contentions are certainly accurate, but it may well be that the applicants are content that their application not remain on the Register of Native Title Claims and that they do not wish to have the consequent right to negotiate. I do not think that those two circumstances, in the context of an opposed motion, justify the exercise of the Court's discretion to adopt the Delegate's Decision. (vi) The Registrar (and his delegate) are specialists whose findings and decisions can be regarded as reliable. 24 In its written submissions the first respondent asserted that in carrying out his task under s 190B the Registrar is required to form a personal assessment of the merits of the claim and whether the factual assertions made in the claim are sufficient to support the assertion that native title rights and interests exist and are held by the applicants. The first respondent claims that by virtue of their experience of dealing with other claims, the Registrar and his delegates have acquired and possess a level of training expertise and experience which the Court, so it is submitted, should not lightly disregard or disapprove and which the Court could have confidence in adopting. Other like submissions were made. 25 There was no evidence before me about the expertise of the Registrar and his delegates. Nor would I regard such evidence as being admissible for the purposes of the present motion. In applying the traditional test as to whether there is a reasonable cause of action, the Court, as I have mentioned immediately above, assumes the facts pleaded (or in this case asserted) by the applicants are made out at trial and asks itself whether, in those circumstances, the case is so obviously untenable that it cannot possibly succeed. 26 In my view, if the Court were to adopt the Registrar's reasoning and decision and used that as the basis for striking out the application, it would be in derogation of its duty to apply the traditional test. 27 There may be many occasions where it would be appropriate for the Court not to embark upon a fact finding process but to adopt a finding or decision of the Tribunal. As I have said earlier, I would imagine that such cases would mostly be cases where there was little controversy or risk of an injustice. But here the Court is being asked to deny the applicants their day in court on the basis of an administrative assessment, made largely on a prima facie basis, for a very different statutory purpose from that which is served by motions of this type. 28 At paragraph 29.1 of the Explanatory Memorandum for the Native Title Amendment Bill 1997 there is the following statement: "… The registration test is not intended to provide a screening mechanism for access to the Federal Court. A claim which fails the registration test may still proceed through the Federal Court to a determination unless it is struck out, settled or withdrawn." 29 In the second reading speech for the Amendment Bill, delivered by the Attorney-General on 4 September 1997, the Attorney said: "… the Federal Court will determine all claims, whether or not they satisfy the registration test." 30 The Registrar's delegate embarked on an evaluation of the evidence which was before him at the time when the Delegate's Decision was made. 31 It can be seen from his reasons that the Registrar's delegate was concerned about the very large area under claim in this application, and the fact that that area overlapped areas claimed in other native title applications which have passed the conditions of the registration test on the basis of separate traditional law and customs. Typical of the expressed concerns of the Registrar were the following observations: "35. In determining whether the application meets the requirements of this condition, I have considered all of the information provided in the application, affidavits and further materials. I am not satisfied that there is traditional law and custom that gives rise to the Pandawn [applicants'] claim for native title. Briefly, my reasons are as follows: Source of claim - traditional law and customs 36. It is not clear where the law and custom that gives rise to the claimed native title is sourced. In my view there are inconsistencies in the applicants' claims, and insufficient evidence to satisfy me, as explained below.

45. I find there is no sufficiently reasonable explanation, that would allow me to be satisfied that the current application is a claim brought by a sub-group of the Wadjari, Northern Nyungar, and Badimia Peoples, in accordance with the laws and customs of those groups.
46. Mr Phillips' letter of 8 November 1999, says that there is no distinct body of Badimia law and custom, which is a linguistically defined group, and that Badimia People share a body of laws and customs with neighbouring similarly defined groups. The Badimia application and the Wadjari applications have each passed the conditions of the registration test on the basis of their separate traditional laws and customs. I understand that in the applications from those groups there was no reference to a communal form of traditional laws and customs between these two groups - and indeed between either of these groups and the Northern Nyungar Peoples - that gives authority to claims by sub groups.
47. Particularly in these circumstances, where an application is lodged over an area the size of this application, and the group that lodged the application state that they are a subgroup of a broader group or groups of traditional systems of law, it is reasonable for me to require more than a mere assertion that the traditional laws and customs give rise to the application.
48. Overall, I find that there is insufficient factual basis to support the applicant's assertion that the claimed rights and interests in the Pandawn application are given rise to by traditional laws and customs of the claimant group." 32 As I have mentioned, the Court's task is a different one. Assuming that all the facts asserted in the application, as further amended, are made out at trial, and in particular those asserted in "Schedule F", I do not think that the applicants' case is one that is hopeless and bound to fail. There may well be factual matters (of the type referred to by the Registrar's delegate) to be resolved at trial. However the application has not, in my opinion, been shown to be clearly untenable and one that cannot possibly succeed.

CONCLUSION 33 For the above reasons I propose to dismiss the motion.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Mr Neil Albert Phillips appeared on his own behalf and on behalf of the applicants

Counsel for the First Respondent: Mr T A Creewel

Solicitor for the First Respondent: Crown Solicitor for the State of Western Australia

Counsel for the Commonwealth: Mr K M Pettit

Solicitor for the Commonwealth: Australian Government Solicitor

Date of Hearing: 8 June 2000

Date of Judgment: 8 September 2000