The abuse issue
241 Mr Miller and Ms Pool seek an order under r 26.01 summarily dismissing the MESL Claim insofar as it overlaps with the Wirangu Land Applications on the basis that the proceeding is an abuse of process: Rules, r 26.01(1)(b). The State joins in that application. It alleges that the MESL Claim constitutes unjustifiable oppression and brings the administration of justice into disrepute.
242 As the plurality in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 explained (at [28]), the categories of abuse of process are not closed:
… In Walman v Gardner the majority adopted the observation in Hunter v Chief Constable of West Midlands Police that the courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be 'manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people'. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.
(footnotes omitted)
243 See also: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 (at [25]) and UBS AG v Tyne (2018) 265 CLR 77, where Kiefel CJ, Bell and Keane JJ said (at [1]):
… The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. …
(footnote omitted)
244 In the present case, there are two arguments founded in abuse of process principles.
245 The first is that the MESL Claim seeks to agitate an issue concerning the "extent of Mirning country" that has been finally determined in the 2013 Determination. I do not accept that submission. The 2013 Determination was the culmination of concessions in respect of the particular land and waters to which the previously overlapping claims related. None of those concessions had the effect of finally determining the eastern-most reach of Mirning country. I do not consider the content of the 2013 Determination provides a basis for the summary dismissal of the MESL Claim as an abuse in the sense that the case sought to be litigated has previously been finally determined.
246 The history of that earlier proceeding is nonetheless relevant to the determination of the second argument. It concerns the timing of the commencement of the MESL Claim and its impact on the administration of justice in the Wirangu Land Applications. It is necessary to expand upon some of that history.
247 For more than 25 years the land and waters in the vicinity of the west coast of South Australia have been the subject of a series of contested and overlapping native title claims. They include but are not limited to the multitude of proceedings culminating in the prior determinations referred to earlier in these reasons. As has been mentioned, persons representing the Mirning People actively participated in negotiations in respect of what were then expansive overlapping claims in an attempt to resolve them. The proceeding known as Wirangu No 2 was filed with the National Native Title Tribunal (NNTT) in August 1997 and transferred to this Court in 1998. It has been on foot throughout the period in which the interests of the Mirning People have been advanced, litigated and negotiated. Wirangu No 2 was notified by the NNTT in early 2001 and there was an unsuccessful attempt at mediation between 2008 and 2012. It was then dormant in the Court for some time but for at least the past six years, it has been actively case managed by the Court. Orders were made in 2018, partitioning Wirangu No 2 into Part A and Part B, the area in Part B having become overlapped by another claim commenced by another Aboriginal group. Wirangu No 2 Part A was then set down for trial to commence on 4 November 2019. A subsequent application by the Wirangu Applicants to have the trial dates vacated was dismissed: Wilson v State of South Australia (No 3) [2019] FCA 1150. A process of extensive negotiation ensued in parallel with the work necessary to prepare the matter for trial, involving the Wirangu Applicants, the State and the respondent parties. As a result of those efforts substantive agreement was reached on the terms of a determination recognising the native title rights and interests of the Wirangu People. Having been informed of those efforts, on 26 November 2019 the Court ordered that the State circulate the consent determination to all of the respondents in draft form. The Court ordered that any party not willing to consent to a draft determination in terms that had been circulated by the State was to file an affidavit identifying the basis of the dispute. The District Council of Streaky Bay raised an issue of extinguishment affecting a small part of the claim area constituting the Streaky Bay Golf Course. No other respondent raised any basis for withholding their consent to the proposed determination.
248 The resources of this Court and the parties were then diverted to the resolution of the single disputed issue, culminating in the judgment in Wilson v State of South Australia (No 4) [2020] FCA 1805 at [4] - [5] (Wilson (No 4)). The issue identified in that judgment was substantively determined as a separate question under r 30.01 of the Rules, drafted with the concurrence of all of the parties, as the only disputed question to be tried. To be clear, by adjudicating the separate question, the Court substantively commenced a trial of the action, on the basis that the parties would be bound by the judgment of the Court. The hearing proceeded on the basis that if the dispute were to be adjudicated in favour of the District Council, then the proposed consent determination could be amended to reflect that outcome. In the result, the issue was determined against the District Council. The Full Court has recently dismissed an appeal by the District Council from the judgment in Wilson (No 4): District Council of Streaky Bay v Wilson [2021] FCAFC 181.
249 In the ordinary course, the District Council must be expected to consent to the determination earlier agreed by all of the other the parties, subject only to a grant of special leave to appeal from the judgment of the Full Court. Neither the District Council nor any other party has identified any other lawful basis for withholding consent to the proposed determination. In light of the Court's order requiring respondent parties to file affidavits outlining any issue in dispute by a fixed date, in my preliminary view it is not presently open to any respondent party to assert an interest in opposing the consent determination based on facts known at any earlier time. No such dispute is anticipated in any event.
250 Were it not for the disputed issue raised by the District Council, Wirangu No 2 Part A together with Wirangu No 3 Part A would in the ordinary course have proceeded to a consent determination in 2020. Moreover, had the Court been made aware that there existed non-parties who asserted rights and interests in the subject land of any kind, the Court would not have diverted its judicial and administrative resources either toward the progression of the matter to trial on 4 November 2019, or to the extensive processes involved in the negotiation and resolution for the issues between the Wirangu Applicants and the State or toward the identification, hearing and adjudication of the separate question. It would not have required all respondent parties to expend costs considering the terms of the proposed consent determination and it most certainly would not have dedicated the Court's considerable resources to assist with the resolution of the primary dispute between the Wirangu Applicants and the State.
251 The circumstances are similar to those arising Stock on behalf of the Nyiyaparli People v State of Western Australia (No 4) [2018] FCA 1370. In that case, a native title claim filed in 1998 was programmed to proceed to a consent determination in September 2018. A month before the date fixed for hearing, an interlocutory application was filed by persons who claimed they were native title holders in respect of a part of the claim area and who sought to be joined as respondents to assert that interest. Barker J dismissed the interlocutory application for a number of reasons, including because it was "unreasonable conduct, to a high degree" for joinder applicants to wait eight years before raising the prospect of an overlapping native title claim and to do so after the proposed consent determination had been authorised by the affected claim group and one month before the consent determination was due to be made (at [45]).
252 Counsel for the MESL Applicant submitted that criticism of the conduct of litigants of the kind made in Stock could not be made here, because in Stock there were identifiable natural persons to whom the relevant decisions and conduct could be attributed. It was submitted that it was impossible for such criticisms to be directed to the whole of an Aboriginal society. It was submitted that neither the Wirangu Applicants not the State could point to a particular individual who had knowledge or decision-making capacities of the kind that may be readily apparent in other cases in which an abuse of process is alleged. I cannot accept these submissions.
253 The NT Act envisages that members of a traditional society may (indeed must) organise themselves in order to advance and protect their unique interests within the framework of the NT Act. A critical part of that framework is that a determination of native title cannot be made in respect of an area in which there already exists an approved determination of native title: NT Act, s 68.
254 Plainly, there are human actors who are responsible for conceiving of the MESL Claim, for making the necessary arrangements for the Meeting, for instructing lawyers to prepare the claim, for instructing the experts referred to in the Meeting slides, for drafting the Original MESL Form 1 for distribution at the Meeting and for conducting the Meeting itself. I will refer generally to those persons as the proponents. Given what occurred at the Meeting it is reasonable to infer that the proponents include Mr Bunna Lawrie. He may well be the only proponent. It matters not either way.
255 It is to be recalled that Mr Lawrie has been an active respondent on the FWCSC Application since 2016. He is plainly dissatisfied with the negotiated outcome culminating in the 2013 Determination. As his affidavits and the sixth slide presented at the Meeting suggest, he is one of a number of people who perceived they were "out-legalled" in prior negotiated claims. As has been mentioned, the Bunna Lawrie Parties were joined as respondents to the FWCSC Application around the time of its commencement in 2016. They include four persons who are also among the selected Elders at the Meeting. As White J observed in 2018, no claimant application had been brought on behalf of the Mirning People to agitate (as claimants) the position the Bunna Lawrie Parties advanced in their capacities as respondents. Three years passed between the judgment of White J in Miller and the commencement of the MESL Claim, notwithstanding his Honour's observation that the Bunna Lawrie Parties had not been authorised by the Mirning People to agitate their position. I have already observed that the Meeting attendees were informed about the efforts of the Bunna Lawrie Parties in the litigation. In circumstances where the Bunna Lawrie Parties have been actively involved in litigation asserting their rights and interests over many years in contesting the FWCSC Application, I consider it to be inconceivable that the same active litigants were ignorant of the claims made by the Wirangu People in relation to what is now the eastern-most portion of the MESL Claim area.
256 There is no explanation given by the proponents (or any other person claiming a relevant interest) for their failure to notify the Wirangu Applicants, or the State or the Court itself of the rights and interests now asserted in the overlapped area at an earlier time. There is no explanation as to why no person now falling within the description of the MESL Claim group made any application to be joined as a respondent to Wirangu No 2 for the purposes of advancing the interests now sought to be advanced. The Court may readily infer that at least four of those persons were well aware that they may join as respondents to a claimant application to assert and protect their rights and interests, four of them having joined as respondents in the FWCSC Application, in recent years with the benefit of legal representation. I can conceive of no reason why the Court's jurisdiction to prevent an abuse of its processes ought not extend to proceedings that are a manifestation of prior choices of persons who are undeniably members of the MESL Claim group (and indeed members of the Elders who authorised the MESL Applicant), whether or not the proceedings are ultimately brought in a representative capacity, and whether or not the claim concerns unique rights and interests arising under traditional laws and customs of Aboriginal People.
257 In any event, whilst the question of whether an application in a proceeding constitutes an abuse of process may be determined having regard to the knowledge of the relevant party, knowledge is not determinative of the issues. A proceeding in this Court may meet the description of a vexatious proceeding if it objectively has the effect of vexing the Court and the other parties, whether or not that consequence is intended: Garrett, in the matter of Company One [2016] FCA 703 (at [10]).
258 In all of the circumstances, the commencement of the MESL Claim (authorised by the same persons) constitutes unjustifiable oppression and so amounts to an abuse.
259 Even if the above finding be wrong, that would not alter my conclusion that the MESL Claim has the objective effect of bringing the administration of justice into disrepute and that it constitutes unjustifiable oppression to all of the parties in Wirangu No 2 Part A, particularly the Wirangu Applicants and the State. To permit the claim to proceed would be to undermine the procedures that are designed to encourage parties to resolve native title disputes by non-litigious processes. It would provide a disincentive to all parties to engage in conciliatory processes rather than commit to a trial if a claimant application (not previously foreshadowed) were permitted to be made in all of the circumstances I have described above.
260 It is not the case (as submitted by the MESL Applicant) that the consent determination might simply be delayed for a short time whilst a separate and distinct consent determination is negotiated with the State. There is nothing in the material before me to suggest that a negotiated resolution between the State and the MESL Applicant in respect of the overlapped area would be readily achieved. That only raises the spectre of a contested trial of (at least) the MESL Part B proceeding which must necessarily occur in the same proceeding or the Wirangu Applications if overlaps: NT Act, s 67. The process for its preparation, hearing and adjudication gives rise to a real likelihood that the final resolution of the Wirangu Land Applications will be delayed significantly.
261 In addition, the introduction into the proceeding of a different claim group gives rise to complexities that potentially affect all of the respondents to the claim. Those respondents have already indicated their consent to the proposed determination in favour of the Wirangu People on the basis that there exists no other native title holders with whom they must have dealings under the NT Act once the determination is made. The late commencement of the overlapping claim in my view would entitle all of the respondents who have previously consented to that determination to withdraw their consent to it because a factual premise behind the consent (the existence of only one "particular native title claimed" and so only one prescribed body corporate) will have altered. The respondents in any event are entitled to certainty and finality as to the rights and interests affecting the subject land and waters. The additional delay is prejudicial in and of itself.
262 I do not consider the more recent date of commencement of the claim in Wirangu No 3 to have any bearing on the issues I have just described. The reasons for the commencement of that claim arose from practical necessities relating to tenure issues affecting small parcels. Whilst it was not commenced until October 2019, it is properly to be regarded as a step taken by the Wirangu Applicants, urged by the State and the Court itself, to ensure that the anticipated consent determination could be made in relation to all land and waters falling within the external boundaries of the Wirangu No 2 claim area. The Wirangu No 3 Part A parcels form only a very small part of the Wirangu No 2 Part A claim area.
263 I have not overlooked that the rights and interests asserted in the MESL Claim are unique in their character. The consequence of its summary dismissal is that the Wirangu Land Applications will promptly proceed to a consent determination in the ordinary course. The determination will preclude any other determination being made in respect of the same land and waters without the claims asserted by the MESL Applicant having been tried and decided. However, as mentioned above, it is significant that the MESL Applicant is authorised by a group whose membership includes persons and key protagonists who have been actively involved in native title litigation for many years. In the absence of evidence to the contrary, it is reasonable to infer that they have sufficient knowledge of the nature of native title proceedings to inform their choices as to how the rights and interests of the persons falling within the claim group description should be advanced and protected in respect of all of the land and waters in which their native title is said to be possessed. At the very least, it was available to any one of them as individuals to join as respondents in Wirangu No 2 from the outset (or to later apply to be joined) so as to put the other parties on notice of the rights and interests they now assert for the first time.
264 The application for summary dismissal under r 26.01 of the Rules should be made. The order in that respect will be expressed so as to make it clear that there exist two discrete bases for dismissing the MESL Claim in respect of its eastern-most portion.