Quall v Risk

the events of 19 and 20 march 2001 6 The substantive trial of the Risk proceedings and the Quall proceedings was due to commence in Darwin on Monday 19 March 2001. An order had earlier been made that they be heard together. However, when the matters were called on counsel for Mr Risk, supported by counsel for the Territory, requested that the Risk proceedings be stood over until Tuesday 27 March as both parties informed the Court that there were prospects of settling the Risk proceedings; I agreed to that application. At the same time, counsel for Mr Risk pressed the Court to hear argument on the strike out application in the Quall proceedings. That application was supported by the Territory, but it was opposed by Mr Quall. He complained that he had only been served with the papers on the preceding Thursday and he needed time to investigate whether he could get legal representation with respect to the strike out application. I adjourned the Quall proceedings to 4.30 pm on the following day, Tuesday 20 March to enable Mr Quall to make those inquiries. 7 When the matter was next called on, Mr Quall advised the Court that he had not been able to arrange legal representation because he was unable to obtain funding. As he did not ask for a further adjournment, I listed the strike out application for argument on Monday 26 March 2001 at 10.00 am. By choosing that date - being the last day before the Risk proceedings were due to be called on again - I gave Mr Quall as much time as I could to prepare his defence to the strike out application. If there were to be a settlement of the Risk proceedings, it might be important for Mr Risk and the Territory to know first the outcome of the strike out application. Subsequently, it transpired that this precaution was unnecessary. 8 Meanwhile, a search of the Court file had revealed that Mr Risk had never been formally named as a respondent to the Quall proceedings. It would seem that the parties, including Mr Quall, had assumed, because of the order that the matters be heard together, that Mr Risk was therefore a respondent in the Quall proceedings. As I was satisfied that no party had suffered, or would suffer, any prejudice, I made a formal order on 26 March 2001 that Mr Risk be joined as a respondent to the Quall proceedings and that he be named as the first respondent. I further ordered that the affidavit of Gregory James Carter be received notwithstanding any deficiency. I ordered that all interested parties present argument on the orders that were set out in the notice of motion but upon the basis that they were sought by way of an oral application made by counsel for Mr Risk on 26 March. 9 Shortly prior to the adjourned hearing on 20 March, Mr Quall filed and served a notice of motion dated 20 March in the Quall proceedings in which he sought the leave of the Court to file and serve an amended application for a determination of native title. On that notice of motion, I made an order that it be brought on for argument at the same time as the strike out application. 10 Mr Quall's notice of motion is therefore the second matter that is presently before the Court. 11 Before examining the history of the Quall proceedings and the Risk proceedings I will briefly refer to the provisions under which the strike out application has been brought.

Order 10 rule 7 12 This rule states that where an applicant fails to comply with an order of the Court directing that party to take a step in the proceedings, a respondent may move the Court on notice for an order that the proceedings be stayed or dismissed. As will become apparent, Mr Quall has repeatedly failed to comply with orders of the Court; the question is whether his defaults are of such a dimension that summary dismissal of his application is warranted.

section 84c of the native title act (1993) (cth) ("the act") 13 S 84C provides that if an application for native title does not comply with s 61 of the Act, a party to the proceedings may, at any time, apply to the Court to strike out the application. 14 Section 61, in its present form, identifies the person or persons who may make a native title application as being a "person or persons authorised by all the persons (the native title claim group) who according to their traditional laws and customs hold the common or group rights and interest comprising the particular native title claimed". Subsection 61(4) is of particular importance, having regard to the nature of the complaints that have been made against Mr Quall; it provides that a native title determination application (that persons in a native title claim group have authorised the applicant to make) must name those persons or otherwise described those persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. It is alleged that Mr Quall has failed to comply with the provisions of subs 61(4).

order 20 rule 2(1) 15 This provision states that where it appears to the Court that no reasonable cause of action is disclosed or, that the proceeding is frivolous or vexatious, or that the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed. Mr Quall's "cause of action" is his application for a determination of native title; he has enunciated that clearly in his several amended applications. I do not think that it could be said that his application fails to disclose a reasonable cause of action. However, Mr Risk's complaint is based on Mr Quall's alleged failure to identify, as required by s 61 of the Act, the native title claim group whom he represents. That omission could give rise to an order for dismissal on the ground that the proceeding is an abuse of the process of the Court. Wilcox J discussed the possibility of summary dismissal in a native title matter in similar circumstances in the matter of Moran v Minister for Land and Water Conservation for NSW [1999] FCA 1637 where he said: "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 proceedings." (par 45)

As his Honour said in Moran's case, at par 46 the term "abuse of process of the Court" has a wide connotation. For example, 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 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."

the institution of proceedings 16 The Risk and Quall proceedings were instituted because of the Territory's proposal to acquire compulsorily all rights, title and interests (including native title) in the land and waters that are the subject of the two applications. The following is a brief summary of the relevant events: · on 23 September 1994, the then Attorney-General, claiming to act for and on behalf of the then Minister for Lands, Housing and Local Government, signed a Notice of Proposed Acquisition and a Notice of Proposal pursuant to the Lands Acquisition Act as then in force ("the Acquisition Act"); · on the same day, 23 September 1994, the then Attorney-General, claiming to act in the same capacity, certified that it was not practicable to delay the acquisition for the twenty-eight days that were referred to in subs 44(1) of the Acquisition Act; · on 24 September 1994, the Territory published, pursuant to subpar 32(1)(b)(iii) of the Acquisition Act, the Notice of Proposed Acquisition; · on 30 September 1994, the Territory compulsorily acquired the land and water; · on 6 October 1994, pursuant to subs 44(3) of the Acquisition Act, the Minister for Lands, Housing and Local Government tabled in Parliament a statement of his reasons for the urgency of the acquisition; · copies of the notices were served on various organisations and persons, one of whom was named as Billy Risk whom I take to be William Maxwell Risk, the party named as the applicant on behalf of the Larrakia people;

· the area of land and water that is the subject of claims for determinations of native title in the Risk proceedings and in the Quall proceedings is the same area of land and water as that referred to in the acquisition.

17 The area that is the subject of the acquisition is known as "East Arm" or the "East Arm Port complex". I will refer to the area as "East Arm". It is a very important and major development for the Territory. It is common knowledge that it has been designed to improve Darwin's existing Port infrastructure, to incorporate the terminal for the proposed Alice Springs to Darwin railway line, to support the offshore oil industry and to provide for growth potential in trade with Asia. Development work in respect of East Arm is said to have commenced on or about 18 November 1994. 18 On that same day, 18 November 1994, Mr Risk lodged his two applications for determinations of Native Title with the National Native Title Tribunal ("the Tribunal"); they were accepted by the Registrar of the Tribunal on 30 September 1995. The then President of the Tribunal came to the conclusion, in due course of time, that he was satisfied that there was no possibility of Mr Risk and the Territory reaching agreement as to the terms of a determination; the President was also satisfied that there was no purpose in continuing mediation between the parties. He therefore directed the Registrar of the Tribunal on 21 August 1998 to lodge the applications with this Court. On 27 August 1998, the Registrar of the Tribunal issued his Certificate of Lodgment of the two applications with this Court pursuant to s 74 of the Act as then in force. 19 On 29 September 1998, Mr Quall, acting on behalf of the Dangalaba Clan, lodged in the Tribunal his application for a determination of Native Title. Following upon the commencement of the Native Title Amendment Act on the following day, 30 September 1998, Mr Quall's application became an application in this Court: see Case 1 in Item 6 of Part 3 of Schedule 5 to the Act as amended; his application then became the application in Action No 6044 of 1998. 20 At a directions hearing that was held on 29 October 1998, and for a short time thereafter, Mr Quall was represented by a solicitor. However, for all practical purposes, he has remained unrepresented throughout the critical stage when these matters were being prepared for trial. He filed no pleadings, no expert reports and until recently, no documents at all other than some amended applications. He attended most - but not all - directions hearings but did not, in any meaningful way, prepare his case for trial until 23 February 2001 when he filed a bundle of various documents of about 240 pages entitled "Evidence of first respondent". Neither Mr Risk nor the Territory had earlier sought to have Mr Quall removed from the Larrakia proceedings as a respondent nor did either of them attempt to have his claim in the Quall proceedings dismissed for want of prosecution until 14 March 2001 when Mr Risk, in his claimed capacity as a respondent in the Quall proceedings, moved the Court for an order that those proceedings be dismissed or, alternatively, stayed. 21 At the directions hearing on 29 October 1998, orders were made in both the Risk and Quall proceedings for the filing and service of a tenure history by the Territory. Orders were also made in both proceedings for the filing and service of points of claim. In addition, there were orders for the filing and service of points of response and experts' reports in accordance with the timetables that were set out in the orders of the Court. Specifically, each of the applicants was to file and serve a document setting out the facts and other matters upon which he would rely in support of his application (the points of claim) by 4 May 1999. 22 On 27 April 1999, Mr Quall's solicitor filed in Court a notice that she was no longer acting for him. He has, since then, been unrepresented in these proceedings, despite his efforts to obtain funding for legal representation. Mr Quall will not accept, as sufficient or appropriate, the inclusion of members of the Dangalaba clan in the Larrakia application. He claims that those whom he represents wish to be separately represented as they are of the view that their interests do not correspond with those of the Larrakia people.

the failures of both applicants 23 Neither Mr Risk nor Mr Quall complied with the timetable for the filing and service of their points of claim by 4 May 1999. Initially, the date was extended to 10 September and then, at a directions hearing on 30 November 1999 it was further extended to 14 December. Even then, both applicants failed to comply with the orders of the Court. 24 On 3 May 2000, neither points of claim having been filed, the timetable was further extended for the benefit of both applicants; all pleadings and reports were to be filed and served by 20 September 2000. On the same occasion the Court further ordered that: · all parties were to file and serve any further material upon which they intended to rely by 26 January 2001; · each applicant was to file and serve a proposed timetable for the conduct of the hearing by 23 February 2001; · each applicant was to file and serve all summaries of the evidence that the applicant intended to lead by 23 February 2001; · both actions were listed for hearing in Darwin on 19 March 2001.

Earlier disputes between Mr Quall and Mr Risk 25 It is now necessary to recount some of the troubled history of the Larrakia native title claims and Mr Quall's involvement in them. It will be sufficient, for the moment, to say that, through Mr Risk, the Larrakia people have made several claims for determinations of native title over land and waters in the Darwin area. It is also sufficient to say that Mr Quall has also made many like claims on behalf of the Dangalaba Clan. However, whereas the Larrakia claims are over relatively larges areas, Mr Quall's claims have been over smaller areas. Two points of importance must be stressed: · all the Dangalaba's claims are within the perimeters of the Larrakia's claims and, as a consequence, there is overlapping; · most of the Dangalaba's claims were either lodged for or considered for registration by the Tribunal before the Larrakia's claims. 26 A particular conflict between the two parties erupted last year in respect of Mr Quall's application for a determination of native title over a small parcel of land of about 1.83 hectares at Myilly Point, a suburb of Darwin ("the Myilly Point Land"). Mr Quall had lodged his application in respect of that land on 8 October 1996. He claimed that he did so on behalf of eight people, each of whom had the surname Quall. Mr Quall was one of those eight people. Two months later, the Northern Land Council, acting on behalf of Mr Risk, lodged an application for a determination of native title over a large piece of land which encompassed the Myilly Point land. Despite the submissions that were then made by the Northern Land Council to the contrary, the Registrar of the Tribunal, on 31 May 2000, accepted Mr Quall's application for registration pursuant to s 190A of the Act. Mr Risk reacted, claiming that he was aggrieved by the Registrar's decision and sought review by this Court under the Administrative Decisions Judicial Review Act 1977 (Cth) ("the ADJR Act"). 27 It was submitted on Mr Risk's behalf that the registration of Mr Quall's application would, or might, preclude Mr Risk from obtaining registration in respect of the larger area of land that was the subject of the Larrakia application. Mr Risk complained that denial of registration would have the effect of denying to the Larrakia people: "… procedural rights of objection currently possessed in relation to various notices of proposal (concerning land the subject to that application) which have been issued under the Lands Acquisition Act (NT), or which in future may be so issued". 28 Section 190A of the Act, dealing, inter alia, with the test for registration of a native title application, came into force on 30 September 1998 as part of a large package of amendments to the Act. Those amendments included transitional provisions that require the Registrar of the Tribunal to apply the provisions of s 190A to applications for a determination of native title that had been lodged with the Tribunal prior to 30 September 1998 but after 27 June 1996: both Mr Quall's and the Larrakia applications fell into that category. The amendments that were made to the Act by the Native Title Amendment Act 1998 (Cth) included provisions that concerned the requirements that had to be satisfied for subsequent applications to be placed on the Register of native title claims; they also addressed the requirements that had to be attended to in respect of applications that were already on the Register so that they might remain on the Register. The Registrar of the Native Title Tribunal is obliged to accept a claim for registration if it satisfies all of the conditions in s 190B and s 190C of the Act. Those sections deal, respectively, with conditions about the merits of the claim and with conditions about procedural and other matters. In any other case an application cannot be registered. The conditions specified in ss 190B and 190C are detailed. Relevantly, subs 190C(2) states that the Registrar must be satisfied that "all the details and other information" required by ss 61 and 62 are included in an application. If not, the application cannot be registered. Conversely, applications which satisfy ss 61 and 62 nevertheless cannot be registered if the other conditions in ss 190B and 190C have not been satisfied. 29 At the heart of Mr Risk's challenge in the ADJR proceedings was the composition of the "native title claim group" that had been named by Mr Quall in his application; the claim was that Mr Quall's application, in its final form, had not been lodged on behalf of a "native title claim group" within the meaning of that term as it appears in subs 61(1) of the Act. If that argument was correct, it meant that there had been a failure to comply with a provision of s 61 which, in turn, would mean that there had been a failure to comply with subs 190C(2). Those failures would lead to the conclusion that Mr Quall's application should not have passed the registration test. 30 In addition to the application for the determination of native title that Mr Quall had lodged with respect to the Myilly Point land, he had also filed five additional applications with the Tribunal, each seeking a determination of native title over five discrete parcels of land in the Darwin area. Each of those five parcels of land formed part of the land which was the subject of the same Larrakia application that covered the Myilly Point land and each of them was lodged prior to the Larrakia application. The same eight persons were named as the native title claim group in each of those five additional applications. 31 Mr Quall's five additional claimant applications were accepted by the Registrar for registration. That led to Mr Risk lodging in Court five individual applications under the ADJR Act, each seeking an order of review in terms that were consistent with the orders sought in the Myilly Point proceedings. Those five matters were called on before me at the same time as the Myilly Point proceedings; it was submitted that it would be possible for the Court to hear all six matters at the same time for, as counsel for Mr Risk submitted, each addressed "an identical legal issue". However, he acknowledged that copies of the material from the Registrar's five files had not then been collated and filed in Court. Furthermore, Mr Dalrymple, who appeared as counsel for Mr Quall in the Myilly Point proceedings, submitted from the bar table that it was not conceded that the factual circumstances in the six claims were identical. In the absence of the relevant papers and in light of Mr Dalrymple's comments, I deemed it inappropriate to deal with the five new matters. I therefore ordered that each of them be adjourned sine die to await the outcome of the Myilly Point proceedings. 32 After having had the benefit of submissions from counsel, I came to the conclusion that there were two discernible errors in the delegate's reasons. First, she assumed, without inquiring, that the family of eight was a native title claim group. Secondly, she accepted a claim for registration by a group of people who were, self evidently, part only of a larger group (the Dangalaba Clan) when there was no evidence of authorisation by, or identification of, the other members of the Dangalaba Clan. 33 An authorisation must come from all the persons who hold the common or group rights and interests: see s 61 if the Act. I have some difficulty with the use of the word all. It cannot mean every person in the group for there may be members of the group who are infants or mental defectives and, as such, incapable of giving their authorisation. The whereabouts of other members of the group may not be known. I cannot see how the failure to obtain authorisation from members whose whereabouts are unknown could prevent an otherwise legitimate claim for native title from proceeding. Fortunately, that particular problem does not arise in this case. 34 It would be open for an applicant, in an appropriate case, to advance an application upon the premise that all such persons were limited to eight people - but Mr Quall did not suggest that in his application. In fact, he had asserted that he made the application on behalf of the Dangalaba Clan, a group that he identified as being "traditionally of the Kulumbirigin Larrakia tribe", and the delegate noted in her reasons that Mr Quall had stated that the Dangalaba Clan comprised about 140 to 150 people. 35 Following upon the publication of my reasons in the Myilly proceedings, the other five matters were called on for hearing. I was advised by counsel for Mr Quall that Mr Quall consented to orders being made, without argument, setting aside the Delegate's decisions to register each of the five applications.

who does mr quall represent? 36 In Mr Quall's original application for a determination of Native Title - that which was filed with the Tribunal on 29 September 1998 - Mr Quall claimed that the application was made: "… on behalf of the applicant and others as claimants."

He then described or identified those others with the two words:

The instructions on the printed application form called for some form of description or identification but there was also, at that time, a notation in these terms:

"It is not necessary to name them or say how many there are."

Nevertheless, the phrase "Dangalaba Clan", without more, was meaningless.

37 In the first of his amended applications for a determination of native title, which he filed on 6 September 1999, Mr Quall answered the question: "Capacity in which the applicant claims to be entitled to make the application" by stating that "claimants of the Native Title Group" had authorised him to make the application on behalf of the group at a meeting at 6 Hack Court, Malak. The Group was then identified as the eight people, who had been named as the group in the Myilly Point and the other associated proceedings. 38 Three weeks later, Mr Quall filed his second amended application on 27 September. The same eight persons were said to comprise the group but the answer to the "capacity" in which Mr Quall claimed to make the application evoked a different answer. He wrote: "Claimants of the Native Title Group who are members of the Dangalaba Clan have agreed to be the claimants and to represent the Dangalaba Clan." 39 There then followed a reference to Mr Quall having been given the authority to act at the meeting at 6 Hack Court, Malak. However, it is clear that the authority only came from those who were at the meeting. It did not purport to claim that he had the authority of all members of the Dangalaba Clan. Mr Quall's third amended application followed some two months later; it was filed on 25 November 1999. It addressed the "capacity" in which Mr Quall acted, but the language of the answer was different even though the same eight family members were said to be the native title claim group. 40 Subsequently, in further documents, Mr Quall changed the identity of the group. The first of those that must be mentioned is Mr Quall's points of claim. In his points of claim, which were part of the bundle of documents that he filed on 23 February 2001, Mr Quall made a significant shift in his identification of his native title claim group. In par 4 of his points of claim, he identifies the applicant group as follows: "4. The Applicant group is a group of Aboriginal people who are known as Dangalaba who have genealogical and ancestral connections (through actual and putative descent from) as an indigenous community since time immemorial."

He later expands on the group saying in par 10 of his points of claim:

"10. The Dangalaba are descendants of ancestors of Dangalaba Aboriginal people who survived the frontier of colonialism of Northern Australia. The Ancestors of the claimant group, Dangalaba are: TIMBAT, BLANCHIE, PAT LAWRIE GUDADJIK, GUNDOOK (SAM), GURRINYEE (DOLLY), BILLAWUK (DEEJA)."

That so far as I can see, is the limit of the information about the identity of the claim group in his points of claim. That does not satisfy the requirements of s 61 of the Act.

41 This identification of the group in the points of claim is at variance with the description of the native title claim group in Mr Quall's original application; it is also at variance with the contents of his earlier amended applications. Of greater significance however, is the fact that it is not identical to the group description that is contained in other documents that were in the same bundle of documents. I turn then to identify the more significant of those documents. 42 The bundle included a preliminary anthropological submission by Mr Warren Murgatroyd, a part time tutor and lecturer in the Faculty of Aboriginal and Torres Strait Islander Studies at the Northern Territory University, Darwin. Mr Murgatroyd explained that his first contact with this matter was in January 2001 when Mr Quall asked him for assistance; he wrote: "Apart from several discussions with Mr Quall during January and February 2001, I have not carried out any fieldwork or other interviews. This submission is therefore based solely upon the advice of Mr Quall and the referred written material, …"

It is reasonably apparent from this concession that Mr Murgatroyd's evidence is of little or no independent value. Mr Murgatroyd then listed the members of Mr Quall's applicant group as "those members of the Dangalaba Clan as identified by Mr Kevin Quall at paragraph 3 of his Affidavit of 20 February 2001" ("Mr Quall's affidavit"). I will return to the contents of this affidavit at a later stage of these reasons.

43 The next document in Mr Quall's bundle was entitled "Factual basis for the Native Title Rights and Interests Claim". It was a short statement ("the statement") of fourteen lines, perhaps prepared by Mr Quall. It was accompanied by another document ("the attachment") that discussed the Dangalaba Clan. The author of that last mentioned document was not identified. I have found it difficult to understand the utility of the information in the attachment. It contradicts the claims about the identity of the native title claim group that appear in Mr Quall's other papers. For example in his statement Mr Quall said: "The Native Title Claim group, the Dangalaba Clan does not exclude anybody who has similar claims to the land and self identify as a Dangalaba Kulumbiringin Aboriginal."

This suggests that the group might be open-ended. On the other hand, part of the attachment to his statement has a heading:

and underneath the heading the following information appears:

"The membership of the Dangalaba Clan have a principal dreaming UNGA the Crocodile DANGALABA gunimidjinda, saltwater specie. The Families include: The Tommy Lyons (Dec) group Frank Belyuen Secretary (Dec) Bobby Secretary (Dec) Topsy, Secretary and families (Dec) Olga Singh (Dec) Linda Danks (Dec) and families Prince of Wales Jason Singh Raylene Singh Zoe Singh Kathy Mimyama Batcho Families Pat Lawrie (Dec) Sam Bunduk (Dec) Dolly Gurrinyee (Dec) Victor Williams (Dec) and families Lindy Williams and families Yula Williams and families Lucy May and families Mary Raymond and families Rona Ally and families"

There is a series of handwritten notations alongside some of the typed entries; it is difficult to read in places and the author of the notes is not identified. For example, the note states that Prince of Wales, Jason Singh, Raylene Singh, Zoe Singh and Kathy Mimyama "regard themselves as Larrakia and have never claimed to be the contemporary Dangalaba …". I found this information about the identity of the Dangalaba clan both confusing and contradictory.

44 I return now to Mr Quall's affidavit. In that affidavit, a copy of which was annexed to Mr Murgatroyd's report, Mr Quall claimed that: "Under traditional and customary laws, elders have authorised on behalf of all its members for Tibby Quall and (sic: as?) the applicant to make Native Title applications …"

Mr Quall then recited the identification of the elders and the persons for whom they spoke:

"3. The following elders of the Danggalaba Clan, Yula Williams, Rona Alley, Mary Raymond and Ron Quall, elders of the Quall family. Ron Quall speaks for the following people: Sarah and Linda, who are daughter of Ronald Quall; Natasha and Kevin, who are the children of Diana; Diana is the sister of Ronald Quall. Phillip, Denise, Kevin Quall, Tibby and Diana are brothers and sisters. 4. Each elder of the respective families have consented and have authorised Tibby Quall as the Applicant and as a member of the group to make applications, amend applications to meet the requirements of the registration test and to deal with matters arising in relation to the applications on behalf of the Native Title Claim Group." 45 That same information, which is so different from his earlier description of the native title claim group, was repeated in another affidavit that Mr Quall affirmed in these proceedings. That last mentioned affidavit was filed on 20 March 2001 together with his notice of motion in which he sought leave to file and serve a further amended application. 46 In that affidavit, Mr Quall added further confusion to the identification of the Dangalaba clan when he said: "The contemporary Danggalaba Clan is made up of those persons of Danggalaba descent who have consciously and unambiguously activated their Danggalaba identity and excludes persons of Danggalaba descent who have 'opted out' of the Danggalaba Clan by claiming traditional entitlements to Danggalaba country by reference to being 'Larrakia'." 47 He purported to expand upon this concept of "opting out" in his proposed amended application by saying: "It is customary tradition that families can select a group according to their own decisions. Those decisions relate to them because they not only claim or identify with one group or clan, but other of their immediate parents or grandparents, and as to which land of either Patrilineal or Matrilineal. It's a choice of the descendants or a choice of Ancestors. To follow either parents means that you can claim to identify with your Mother's ancestors or Father's ancestors or both. It's an Aboriginal tradition, and is well respected by all traditional Aboriginal People." 48 However, that statement seems to me to be no more than a recognition that some Aboriginal people choose to associate with their patrilineal line while others choose their matrilineal relatives. As such, "opting out" does not seem to be an appropriate expression. On the other hand, Mr Quall emphasised that some people had "opted" out of the Dangalaba Clan by referring to Lula Williams and her brother Victor Williams. He claimed that Lula and her family were part of the "contemporary" Dangalaba Clan whilst Victor and his family regarded themselves as part of the Larrakia. This divisiveness makes it difficult to accept that those who claim to be the Dangalaba Clan constitute the whole clan and that difficulty is exacerbated by other statements that Mr Quall has made which acknowledge that the membership of the Dangalaba Clan is, to say the least, a very fluid subject. 49 Mr Quall also included some genealogical material in his bundle. It is, at this stage, of uncertain value as there is not a readily perceived connection between its contents and the alleged identification of Mr Quall's native title claim group. 50 In addition to some maps and some general language and archaeological material, Mr Quall also included some affidavits in his bundle of documents. The first of them was an affidavit that had been affirmed by Ms Audrey Tilmouth in another Native Title claim (Action No D6006 of 1999). There was nothing in that affidavit which could assist Mr Quall. Its contents were directed towards establishing conflict between three families and the Northern Land Council about the true composition of the Larrakia People. 51 The next affidavit was that of Ms Susan Roman; she stated in her affidavit dated 23 February 2001 that she supports Mr Quall's application [par 6] but that she does not support the application that has been made on behalf of the Larrakia people because there are people who are included in the application "who are not identified by me as Larrakia" [par 7]. However, she does not assert why and how she supports Mr Quall. In particular she does not identify herself with him as part of the Dangalaba Clan. For example, attachment 1 to her affidavit shows the descendants of Yirra Bandoo, her maternal grandmother. The name Quall does not appear in that genealogy. In fact, Ms Roman identifies herself with the Larrakia; attachment 3 to her affidavit relates to "The Sub-groups or families (which are all descended from one or more of the nine apical Larrakia ancestors) …" The attachment then refers to seven families, the first of which was "Djalamin and King Tommy Families". Elsewhere Djalamin was identified as the husband of Yirra Bandoo, Mrs Roman's maternal grandmother. It is not apparent how the information in Ms Roman's affidavit and the annexures would assist Mr Quall. 52 Finally, Mr Quall attached a copy of an affidavit that Mr Risk had affirmed in another native title action. In that affidavit Mr Risk emphasised that he was a member of the Larrakia people. He referred to "the wider Larrakia family group" and he later said: "That the Group of people who recognise each other as Larrakia and who wish to be recognised as a distinct group in all native title applications and native title related matters can be described by the following three groups of Larrakia families".

There then followed three lists one of which contained the entry "Lindy Quall (deceased)". The name "Lindy Quall Andjurra" appears on three handwritten pages of genealogical information in Mr Quall's bundle of documents but a connection to Kevin Lance ("Tibby") Quall is not apparent. However, the name "Quall" is sufficiently unique for me to proceed upon the premise that there is a blood or marital connection between Lindy and Tibby. The matter of greater significance when considering Mr Risk's affidavit is that it makes no mention of the Dangalaba Clan. For that reason alone, it does not assist Mr Quall.

53 On the morning of the hearing of the strike out application, Mr Quall handed up, without objection, four affidavits that had been affirmed by Ronald Quall, his father, and by his three maternal aunts, Yula Williams, Mary Raymond and Rona Alley. Each of the four claimed to be a member of the Dangalaba Clan and each claimed that the area of the East Arm was Dangalaba country. They explained that they had never attended "meetings conducted for the big Larrakia group in relation to native title claims" and each made it clear that he and she had not authorised the Northern Land Council to include the deponent in any native title claim. Each of them asserted that Mr Quall had the authority to make the application for native title that is currently the subject of these proceedings. The effect of these affidavits was to accentuate the enormous gulf that exists between those who regard themselves as members of the Dangalaba clan and those who belong to the Larrakia group. The affidavits do not, however, assist in identifying the complete membership or the composition of the Dangalaba clan or of the native title claim group and, for that reason, they are of limited value to Mr Quall. 54 Finally I turn to Mr Quall's proposed further amended application - that is, the amended application that is the subject of his notice of motion dated 20 March 2001. In Schedule A to his proposed amended application (which is entitled "Native Title Claim Group") the following information has been inserted: "The native title claim group comprises the following descendants of Danggalaba Clan ancestors and constitutes the contemporary Danggalaba Clan according to Aboriginal law and custom. Kevin Lance (Tibby) Quall (also the applicant) and children Ronald Keith Quall and children Diana Deeja Quall and children Phillip Rupert Quall and children Yula Williams and children and grandchildren Mary Raymond and children and grandchildren Rona Alley and children and grandchildren Denise Rainger and children (Denise Rainger is the married name of Denise Quall) Further Information 1. The Native title claimant group of Schedule A are the Descendants of Danggalaba clan Ancestors and make up the Contemporary Danggalaba Clan The Danggalaba Clan Contemporary Group is a family group who are the descendants of Deeja Batcho, descendant of Blanchie (Apical Ancestor - Matrilineal). The families of Deeja Batcho comprises her children of Linda Quall (Deceased, Victor Williams, Yula Williams, Lucy May, Mary Raymond, Rona Alley. Also of Deeja Batcho are Victor Williams and children, Lucy May and children. These persons of descent self identify themselves as being Larrakia." 55 At one stage in attachment S in his proposed amended application he wrote: "The members of the native title claim group are all members of the Danggalaba Clan, however the applicant acknowledges that the information contained in Attachment S applies to a broader group than the native title claim group. The native title claim group is therefore not claiming association with the area in accordance with traditional laws and customs, nor native title rights and interests to the exclusion of other members of the Danggalaba Clan who are not members of this native title claim group." 56 In his proposed amended application for a determination of native title he has asserted: "The native title rights and interests claimed are subject to any native title rights and interests which may be shared with any others who establish that they are native title holders of the area."

That statement cannot be accepted. If a native title claim group is successful in obtaining a grant of native title, it is the members of that group who enjoy the consequential benefits. Other Aboriginal persons who may have been entitled to "share" but who were not part of the native title claim group will have no standing in the eyes of the law.

57 The group in schedule A is different from any other group that Mr Quall has earlier identified and in particular, it contradicts the description of the group that he has identified in his points of claim. 58 I find myself unable to identify, with any degree of certainty, the composition of the native title claim group that Mr Quall says he represents. As I have said, the information in his proposed amended application is at odds with his points of claim, with his accompanying affidavit, with his original family of eight and with the information in his bundle of documents called "Factual basis for the Native Title Rights and interests claim". At the first directions hearing on 29 October 1998, when the original time-table was fashioned for the prosecution of both sets of proceedings and Mr Risk and Mr Quall were ordered to file and serve points of claim, the order went on to provide that the matters to be addressed in the points of claim were to include the matters that were identified in the schedule to the Order. The schedule required the applicants to address the following matters: "An outline of the persons on behalf of whom the native title determination is made ("applicant group"), including: (a) the composition of the applicant group, including whether the applicant group is a partrilineal, matrilineal, ambilineal or cognatic descent group, clan language group or some other type of group, and the social, cultural and political elements and structures which constitute that group (including any sub-groups); (b) any relevant sub-groups within the applicant group; (c) the criteria for membership of the applicant group and any relevant sub-groups; and (d) as far as is reasonably practicable, a list of all identified persons in the applicant group including, in respect of each such person; (i) his or her name (including where applicable, Aboriginal, European and name he or she likes to known as); (ii) his or her place of residence; (iii) his or her date and place of birth (iv) the basis upon which the person is said to form part of the applicant group; and (v) a genealogy showing the person's biological or adoptive connections." 59 Mr Quall has not complied with the terms of the schedule. The only information in his points of claim that identifies the requirements of par (d) of the schedule is that found in par 10. That is inadequate. The information in his proposed amended application for a determination of native title is different but it still does not contain the information that was required by the Court's order and by the provisions of s 61 of the act.

section 84c - conclusion 60 Section 61 of the Native Title Act, as originally in force, contained a table that set out the applications that could have then been made for a determination of native title. Putting to one side certain rights that were reserved to the Commonwealth, the States and the Territories, the persons who could make an application were then described in these terms: "(1) A person or persons claiming to hold the native title either alone or with others; or (2) A person who holds an interest in relation to the whole of the area in relation to which the determination is sought …" 61 The term "native title claim group" did not appear; it only came into the legislation with the 1998 amendments. 62 In the notes that are contained in Table A to the Native Title Amendment Act 1998 (which are entitled "Application, Saving or Transitional Provisions") note 21 provides as follows: "Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act." 63 Section 84C was introduced by the 1998 Amending Act ("the new Act") and, as is apparent from a reading of Note 21, ss 61 and 62 of the Act were both amended at the same time. The matter of significance to these proceedings is that the "old" s 61, unlike the "new" s 61, did not require an applicant for determination of native title to assert that he or she or they were "authorised" by all the relevant persons in a native title claimant group. If therefore, note 21 is to be read literally, it would mean that, because Mr Quall's application was lodged prior to the introduction of the 1998 Amending Act, a strike out application under s 84C is to be considered by having regard to the contents of the old s 61. As there is no suggestion of the new s 61 having retrospective effect, I have no difficulty in accepting that interpretation. If, however, the applicant, as a matter of free choice, decided to amend the application by changing the composition of the claimants, as Mr Quall has done in this case, what then is the position? Is the applicant entitled to rely upon the fact that the application was lodged prior to 30 September 1998 and so ignore the provisions of the new s 61? Or does the act of amendment become a catalyst and so force the applicant to comply with the provisions of the new s 61. A literal reading of the note might suggest the former answer but other provisions of the legislation suggest the latter. I turn then to consider those other provisions. 64 Note 11(5) of Table A requires the Registrar of the National Native Title Tribunal to consider a claim that was made on or after 27 June 1996 as soon as reasonably practicable. Note 11(9) states that if a claim does not satisfy all of the conditions in ss 190B and 190C of the new Act, the Registrar must remove the details of the claim from the Register and do the other things for which provision is made in the note. The next provision that must be considered is par 190C(4)(b). It states that the Registrar must be satisfied that either the application has been certified by the appropriate Aboriginal/Torres Strait Islander body or: " the applicant is a member of the native title claim group and is authorised to make the application, and deal with matters arising in relation to it, by all the other persons in the native title claim group."

The word "authorise" is extensively defined in s 251B of the new Act, and having regard to the issues in this case, it is of importance to set out the definition:

"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 final definition in the new Act that needs to be mentioned is that of "native title claim group". So far as it is relevant to these proceedings the definition provides as follows:

"(a) in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61(1)" 65 These provisions that have just been summarised admittedly relate to the issue of the registration test - they are not concerned with the contents of the application for a determination of native title. Nevertheless, they are an aid in the interpretation of s 84C and Note 21. They assist me in concluding that whilst an original application that was filed before 30 September 1988 is to be considered against the provisions of the old s 61, an application that is amended after that date by changing the particularity of the claimants must comply with the provisions of the new s 61. 66 In my opinion, Mr Quall has failed to comply with the provisions of subs 61(1) of the Act. That failure has the potential to activate s 84C. There is a reluctance in the Court to summarily dismiss a claim. That reluctance comes from a strong line of authority which requires a Court to be satisfied that a claim has no chance of success before taking the drastic step of striking it out. The case must be "so clearly untenable that it cannot possible succeed": Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 135; see also the remarks of Wilcox J in Moran's case to which reference has already been made. 67 When the applicant is an unrepresented indigenous person who is making a claim for native title on behalf of a group of persons, the task of the Court is even harder. If this application for summary dismissal had been made at an early stage in the proceedings, I would have dismissed it; I would have granted leave for fresh points of claim to be filed and for the applicant to identify better the group whom he represents. The question is whether that is the course that I should take at this stage in the proceedings when the matter has been called on for trial some two and a half years after the initial directions hearing. Having reflected upon the matter, I do not think that it can be further delayed. I have come to the conclusion that it is proper for the Court to dismiss Mr Quall's application summarily. I have come to that decision for the following reasons: · it is now apparent that Mr Quall will not be funded for legal representation; · he will not therefore have the benefit of professional advice in the preparation of fresh pleadings; · the Court must therefore assume that there is little or no likelihood that he will be able to plead his claims in the manner required by the provisions of the Act; · Mr Quall has had over two years within which to formulate his claim and identify the native title claim group that he is representing; · his failure to identify the group is not a minor detail or a technical matter - it is one that goes to the heart of a native title claim; · finally, there is no material in his papers that suggests that he has the authority of the various people (whom he identifies as comprising the native title claim group) to make an application on their behalf: see subs 61(1) of the Act. 68 Mr Carter deposed in his affidavit to the findings of Justice Gray in the Kenbi Land Claim. That was a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") and the Dangalaba Clan, who were legally represented, was one of several claimant bodies. As part of his findings, his Honour concluded that the Dangalaba Clan was not a "local descent group" within the meaning of that legislation. I have not found it necessary to examine the findings of Justice Gray and the provisions of the Land Rights Act to see whether they afford additional grounds in support of the application to dismiss Mr Quall's proceedings.

order 20 rule 2(1) 69 The identification of the native title claim group and the authorisation of all members of the group are such vital matters to the success of a native title application that it may become obvious that their absence means that any pursuit of the application would be an exercise in futility. In such a case, the question will arise whether the continuation of the proceedings would be an abuse of the process of the Court. In order for Mr Quall to succeed not only must he identify the native title claim group that he represents, he must also show that he has the authority to act on their behalf. In the tortuous examination of the many documents that he has filed it is neither possible to identify the group nor is it possible to be satisfied that he has the necessary authorities. After a period of two and a half years, there is no reason to have any confidence that these important gaps could now be remedied by an amendment to this current amended application. I have concluded on the evidence that was placed before me that there are members of the Dangalaba Clan, other than those who have authorised Mr Quall to take these proceedings. If then the Dangalaba Clan is truly a native title claim group (and I make no finding on that subject) the evidence does not satisfy me that Mr Quall has been authorised by all the persons who hold the common or group rights and interests. Independently of my decision under s 84C, I would dismiss the application under O 20 r 2(1)(c) 70 I turn finally to consider the provisions of Order 10.

order 10 rule 7(1)(a) 71 The recitation of the virtual inactivity by Mr Quall until 23 February 2001 has been a cause of concern to the Court and, no doubt, irritation to the other parties. However, it is important to remember that he is an indigenous person who, for most of the time, has been without the benefit of legal representation. It is also significant to bear in mind that Mr Risk (whose claim is being managed and funded by the Northern Land Council) repeatedly failed to comply with the timetables that were laid down by the Court. His points of claim were finally filed as recently as 29 January 2001, some twenty months after the original due date for filing, while the last of the summaries of evidence was not filed until 8 March 2001. Even at this stage, when I was hearing the strike out application, the Territory had on file an unresolved notice of motion in the Risk proceedings that claimed that the most recent version of Mr Risk's points of claim was deficient. In view of his extreme delay and repeated failures to comply with the orders of the Court, it is paradoxical that it is Mr Risk and not the Territory who was moved to strike out Mr Quall's proceedings. 72 In my opinion it would not be appropriate to make an order against Mr Quall under O 10 r 7. In refusing the application, I am guided by the views of the High Court in State of Queensland v J L Holdings Pty Ltd (1996) 189 CLR 146. That was a case that dealt with a trial judge's refusal to permit a late amendment to a defence, but some of the remarks of the learned justices have application to the circumstances of this case. For example, in their joint judgment, Dawson, Gaudron and McHugh JJ at 336 approved of the remarks of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710 where his Lordship said: "Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other divisions of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace." 73 There is, of course, no question of fraud here. Whilst he has been tenacious in his refusal to compromise with the Larrakia claimants, Mr Quall's forensic inactivity has been occasioned by his inability to obtain legal assistance. Whoever it is who has assisted him in the preparation of his most recent paperwork has done little to hide the fact that some of it has been copied from the Larrakia claim. Indeed, on one occasion, the plagiarist, in the preparation of Mr Quall's papers, omitted to remove the name "Larrakia" as the claimant: see the document entitled "Schedule 1 Form of Orders sought". 74 A comparison between the facts in Mr Quall's case with those in J L Holdings does not, admittedly, favour Mr Quall. In J L Holdings the application to amend the defence was made before the case had been set down for trial and the date of trial, when fixed, was six months ahead. Mr Quall filed and served about 240 pages of material less than four weeks before trial. The only redeeming feature is that some of it is a copy of material that is in Mr Risk's application. 75 If the only criticism was Mr Quall's failure to file and serve all appropriate documents until 23 February 2001, less than four weeks before the hearing was due to commence, I would not have been minded to stay or dismiss his claim - unless of course Mr Risk was able to show irreversible prejudice. Problems occasioned by the late filing of the documents could, most likely, have been accommodated with costs orders and an adjournment if those matters were necessary. Notwithstanding the language of O 10 r 7, it does not mean that any failure to comply with an order of a Court would result in the dismissal of the proceedings: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 98 ALR 200 at 212 per Wilcox and Gummow JJ. 76 There is however, in this particular case, the failure by Mr Quall - repeatedly - to identify the native claim group whom he claims to represent with appropriate particularity. That deficiency can only be regarded as fatal: and, after two and a half years, I have no confidence that the deficiency can be remedied. Furthermore, there is the further problem that Mr Quall has not advanced any material that would suggest that he has the authority of the members of his alleged group to make an application on their behalf. 77 It seems to me that I am left with no alternative but to dismiss Mr Quall's application for a determination of native title. Mr Quall should not be permitted to file and serve, in its present form, the further amended application. I will therefore make no order on Mr Quall's notice of motion. 78 I will hear the parties on the question of costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Dated: 6 April 2001 The Applicant appeared in person:

Solicitor for the first Respondent: Ms P Cresswell

Counsel for the second Respondent: Mr T Pauling QC and Mr V B Hughston

Solicitor for the second Respondent: Solicitor for the Northern Territory

Date of Hearing: 26 March 2001