Quall v Northern Territory of Australia [2012] FCA 677 | Case summary

CONSIDERATION 17 The submissions on behalf of the applicant focused largely on the "new evidence" said to have been proposed to be adduced at the hearing of the seven claims if they had not been summarily dismissed, and the allied contention that the applicant in the hearing in the course of Risk had not had the opportunity to litigate the question as to whether his claimed native title group (described in the proposed grounds of appeal as the Danggalaba Land Holders Group) existed and according to its traditional laws and customs held native title in the claim areas at, and since, sovereignty. 18 Before turning to identify and consider the material relied upon by the applicant on these applications, it is convenient to determine one issue. 19 The proposed notice of appeal (grounds 1 and 2) asserts that a native title claim cannot be dismissed as an abuse of process by reason of the same or substantially the same issues having earlier been litigated and determined. That submission is contrary to the decision of the Full Court in Dale at [111]-[112], and to the observations of the High Court when refusing special leave to appeal from the decision in Dale. There the issue of the availability of "abuse of process" findings within native title considerations was specifically raised. The application for special leave to appeal was refused: [2011] HCA Trans 332. Kiefel J commented at 5 that "an abuse of process is an abuse of process in any proceeding" and Hayne J (on behalf of Crennan and Kiefel JJ) at 11 said: There is, however, no reason to doubt [in claims under the NT Act] that principles of abuse of process can be engaged and it is well settled that an attempt to re-litigate an issue which has been resolved in earlier proceedings may constitute an abuse of process even though the earlier proceedings did not give rise to a res judicata or issue estoppel. It appears also to be suggested in the proposed grounds of appeal that, alternatively, the usual tests to determine whether there is an abuse of process do not apply or are somehow qualified in relation to claims under the NT Act. That proposition was not put in argument on these applications, and so may be put aside. In any event, it was not a proposition adopted by the High Court in the decision just referred to. 20 The only material relied on by the applicant on these applications (save for that explaining why an appeal was not instituted within time) was the proposed notice of appeal, the affidavit of Dr Day of 30 August 2010 and his report dated November 2010 (both provided to the primary judge), and the applicant's written submissions to the primary judge. The other affidavit of Dr Day was not referred to. It was also accepted that the applicant was not legally represented in the hearing leading to the Risk decision. 21 There is nothing in that material which indicates that the critical issues decided in Risk about the land and waters the subject of that decision are different from the critical issues which would need to be determined if the claims presently under consideration were heard and determined. The respective claim areas are of course a little different, as Risk considered areas within the urban areas of Darwin, whereas broadly speaking the present claim areas are in rural areas surrounding Darwin. But there is nothing to indicate that the identification of the Aboriginal peoples who, according to their traditional laws and customs, exercised rights and interests in relation to those areas were different. In particular, Dr Day does not suggest that. 22 At its highest, Dr Day suggests that since the decision in Risk, there may have become available from National Archives of Australia certain records relevant to the continuity of the connection of the Larrakia people to the land and waters in the urban and surrounding rural areas of Darwin which was not presented on their behalf at the hearing of those claims. He says that the applicant and other members of his group have consistently identified as Larrakia for decades. It may be observed that that was not a matter in issue in the course of the Risk proceedings; the applicant and his family were accepted by the Larrakia claim group as members of the Larrakia group. The nature of Dr Day's proposed evidence (used before the primary judge to resist the strike out application) is conveniently encapsulated in [41] of his affidavit where he argues for a "re-appraisal of the Larrakia land claims". 23 Dr Day's affidavit then exposes the fact that his involvement with the Larrakia people extends back to 1971, including dealings with the Aboriginal Land Commissioners from time to time and the Kenbi Land Claim. He says the claim by William Risk and others as applicant for the Larrakia people could have been better presented, including by the use of his evidence. However, that was a forensic choice by those conducting that claim. He may or may not be right. But his affidavit, except in identifying possible further evidence to support the connection between the Larrakia people of today with the Larrakia people at sovereignty, does not support any more refined claim group over the subject land and waters. It does not suggest that the applicant (and his family) are other than part of the Larrakia people, or a separate and different claim group. It does not therefore support the applicant's outstanding claims that native title over the subject land and waters in the name of a different and more confined claim group, excluding the wider Larrakia people, should succeed. In addition, I agree with the primary judge that it is not new evidence in any sense, but evidence which was available to be called by either the applicant or those conducting the claim on behalf of the Larrakia people in Risk. 24 The report of November 2010 attracts similar observations. It shows a long awareness of the extent to which the composition of the Larrakia people, and subgroups within the Larrakia people, was the matter of extensive consideration during the prolonged hearing of the Kenbi Land Claim. It argues for a more confined definition of the Larrakia people. It argues that the decision in Risk was erroneous. But, again apart from some arguably new evidence to support connection generally, it does not identify any new evidence not previously available which could not have been secured and adduced in the hearing of the Risk claim to establish (if it were the case) that the claimant group identified by the applicant as authorising him to bring these outstanding claims (or the claims in which he was the applicant and which have been brought to an end by the decisions in Risk, Risk FC and Quall) was and is the relevant group holding native title rights and interests at sovereignty and to the present time in the subject land and waters. That was the view reached by the primary judge at [80]-[82]. 25 The primary decision at [72]-[79] discusses in detail Dr Day's affidavits (as noted, there were two, but only one was referred to on the present application) and his report. His Honour concludes at [76]-[79] that the "new" material was on the material known to be available both by the applicant and by Dr Day from at least 2000. There was no satisfactory explanation as to why it had not been procured and adduced in evidence during the hearing leading up to the Risk decision. 26 In my view, on these applications, the applicant has not shown any arguable basis for showing that the conclusions of the primary judge about the status of and the significance of the "new" evidence presented to oppose the strike out applications was erroneous. I note in this regard that his Honour, at [83], indicated that he took the material in Dr Day's affidavits and his report in the light most favourable to the applicant. 27 Having made those comments, it is convenient to revert to the particular proposed grounds of appeal, and the three general categories under which they are said to show arguable error. I have addressed grounds 1 and 2. 28 Grounds 3 and 4 relate to the balancing of justice and equity between the parties, as required by the assessment of the last two Stenhouse considerations by the primary judge, namely the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice, and an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process. 29 The primary judge at [85]-[86] considered those matters. His Honour recognised the balancing required at [85]: the oppression and unfairness said to be occasioned to a party by the relitigation of an issue, and the prejudice and unfairness said to arise if a litigant is unable to submit a real and genuine controversy for determination on its merits. 30 He referred to his consideration in Quall at [118]-[122], of the same matters, and said they apply with even more force to the expanded or restructured Danggalaba Clan group that the applicant in these claims was pursuing. Having regard to the desirability for the finality of litigation, the promotion of public confidence, the just and efficient allocation of the Court's resources and the balancing of justice between the parties, and the right of any person to present to the Court a real and genuine controversy that has not been determined on its merits, his Honour concluded that the applicant had already put forward as a real and genuine controversy the question whether the Danggalaba Clan or a variation of it was the relevant Aboriginal society at sovereignty, and his Honour did not consider on the material that there is still a real and genuine controversy in relation to the claim group as identified in these claims being the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands. That is based upon the material referred to above. 31 Moreover, as the primary judge found, the decision in Risk that the relevant Aboriginal society at sovereignty possessing rights and interests in the subject lands and waters was the Larrakia peoples, and the more confined claim group now asserted was the same, or at least a very similar claim group to that raised by the applicant in Risk; that claim had been rejected in Risk. 32 The primary judge was required to balance the interests of justice and has done so. There is no arguable error shown in the process by which his Honour reached his conclusion, or in the conclusion reached, on that general requirement. 33 Ground 5 asserts that the primary judge wrongly applied the reasoning of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286 (Rogers). As noted above, the circumstances in which abuse of process may arise are varied and not limited to any fixed categories: see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [89]. The High Court referred to the conclusions of McHugh J in Rogers 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. 34 The primary judge at [39] observed that the present applications fell into both the second and third of two categories. His Honour then cautioned against finding an abuse of process, except in the clearest of cases, and after considering the Stenhouse factors, he concluded that these claims fell into that category. His Honour is not shown, even arguably, to have misunderstood or to have misapplied the law. 35 Ground 6 is simply an assertion of error in reaching the ultimate conclusion, but it does not identify any arguable error. It must depend on other grounds. 36 Grounds 7 to 12 under the heading "Abuse of Process" and 15 to 16 under the heading "Every Opportunity to Litigate" express in various ways that the primary judge was wrong to conclude that the fundamental issues as determined in Risk, Risk FC and Quall are the same as those raised in the current proceedings. 37 In my view, for the reasons given, no arguable error of the character asserted has been shown. That becomes more apparent by further analysis of the primary decision. 38 At [43] of the primary reasons the three issues that were considered in Risk, and again in Quall, were identified: (a) the Larrakia peoples comprised the Aboriginal society at sovereignty and by the traditional laws and customs of its normative system possessed rights and interests in relation to the lands and waters in the Darwin area, including Area A; (b) there has been a substantial interruption in the acknowledgement and observance of the traditional laws and customs of the Larrakia peoples since sovereignty such that native title does not now exist for the lands and waters in Area A; and (c) there was not a separate, more confined, Aboriginal society at sovereignty that by its traditional laws and customs had rights and interests in relation to the lands and waters in the Darwin area, comprising the Danggalaba clan. 39 At [53] his Honour then set out the fundamental underlying issue in these proceedings as being the identification of the relevant Aboriginal society at sovereignty possessing native title rights and interests in relation to the land and waters in the Darwin area. This, he found, is in substance very similar, if not the same, as the issues considered in Risk (at [61]). The applicant has not shown why his Honour was arguably wrong in coming to this conclusion. When questioned about this in the course of oral submissions, the applicant did not identify issues that were different, but stated that the way in which the applicant has been able to present his case has been compromised and that there is new evidence that impacts on the consideration of these issues. These considerations are raised as separate grounds of appeal, and are separately addressed. 40 Grounds 13, 14 and 17 challenge the conclusion of the primary judge that the applicant had ample opportunity in Risk to litigate the issues he now wishes to litigate. In oral submissions, counsel for the applicant pointed out that the applicant had not been legally represented in the Risk hearing and that Dr Day was not invited to give evidence by any of the applicants. At [54] and [55] of the primary reasons, his Honour observed that the applicant was a party to the consolidated Risk proceedings, gave evidence, tendered documents, cross-examined witnesses and made submissions; he pursued an appeal to the Full Court of this Court and then sought special leave to appeal to the High Court. In my view, the applicant has not shown any arguable error in the conclusion that he had the opportunity to ventilate the issues he now raises in Risk. There is no evidence suggesting how his opportunity to present his case was obstructed or impaired. It is not the case that, because he was unrepresented, necessarily that opportunity was denied him. 41 Grounds 18, 21, 24, 25 and 26 under the heading "Factual Matrix, Expert Evidence & Fresh Evidence" address the issue of Dr Day's expert evidence. This was the main thrust of the applicant's oral submissions. The applicant submitted that Dr Day provided new evidential material, and that Dr Day was not invited to give evidence in earlier proceedings by the Risk applicants or by the applicant, and that Dr Day's evidence differed considerably with that of evidence presented at that hearing. The applicant submits that prior to the release of Dr Day's report in November 2010, he did not have any other expert evidence in which he could rely upon to support his claims, and that this new evidence calls into question the findings as to the construction of the of the Larrakia native title claim group. In the affidavit Dr Day describes how it was not until 2008 that the previously prepared genealogy of the Larrakia people (the 1973 genealogy) was sighted again, after a digital copy was requested from National Archives of Australia. He also referred to other archival material that has recently been made available. 42 The primary judge considered this issue at [72]-[84]. At [76] he stated that he did not consider it is "fresh evidence in the sense that it was not previously known or encountered" and that "[i]n [Dr Day's] first affidavit, Dr Day makes it plain that both the existence and significance of the 1973 genealogy were known to, and discussed by, Mr Quall and himself since approximately 2000." The genealogy apparently became available from the National Archives of Australia from 2004. His Honour noted that no satisfactory explanation had been given as to why the 1973 genealogy was not obtained after 2004. For the reasons already given, the applicant has not shown why the approach of the primary judge is arguably inaccurate or inappropriate. 43 Further, his Honour did not accept that the evidence had the significance that the applicant ascribed to it. Taken at its best, the evidence does not go to the existence of a separate set of laws and customs of the Danggalaba clan. 44 His Honour stated at [83] that: … even if the 1973 genealogy addressed the difficulties the Quall applicants encountered with the composition and structure of the Danggalaba Clan, that will not overcome the obvious deficiency in the evidence going to show that the Danggalaba Clan was the relevant Aboriginal society at sovereignty possessing native title rights and interests in relation to the land and waters in the Darwin area. The applicant did not address this issue in either written or oral submissions, but for the reasons given, there is no arguable error in that conclusion. 45 Grounds 19 and 20 are not expressed with precision. Ground 19 suggests that his Honour erred in finding that the applicant was required to produce new evidence to show that the findings in Risk did not apply in order to establish native title in the claim areas. The applicant did not refer to any point in the primary reasons where such a finding was made. The closest reference appears to be [82] where his Honour states that the 1973 genealogy 'will not overcome the obvious deficiency in the evidence going to show that the Danggalaba Clan was the relevant Aboriginal society at sovereignty'. This goes to the significance of Dr Day's evidence, as described above, as 'fresh' evidence, for the purposes of balancing the Stenhouse considerations. There is no arguable error in his Honour's assessment of Dr Day's material. 46 Ground 20 concerns the proper weight given as to the purpose and application of the NT Act, as it applies to native title claimants. The applicant did not identify any passage in the primary reasons to demonstrate arguable error, nor any provisions in the NT Act which would support any such alleged error. 47 Grounds 22 and 23 refer to the consideration by the primary judge of Dale FC and the similarities between the two cases as his Honour observed them. The applicant did not expand upon these grounds during the course of oral submissions. It is not shown that his Honour's references to Dale, in particular about the circumstances in which there may be an abuse of process where there has already been litigated the existence or otherwise of a claimed native title holding group, and a subsequent attempt to relitigate that question, involved any arguable error on his part.

Quall v Northern Territory of Australia

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Judgment (24 paragraphs)

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Cases Cited (13)

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