Wason on behalf of the Bar Barrum People #5 v State of Queensland

REASONS FOR JUDGMENT 1 On 19 August 2015, I made a number of orders which put in place a process whereby the issues that were legitimately raised by the Walsh River Respondents (as described in Order 4 of the orders made on 19 August 2015) could be determined at a date to be fixed as early as possible in 2016. It should be noted at the outset that those issues stand as the main barriers to a finalisation of this proceeding because all the other parties to it are in the final stages of agreeing the terms of a consent determination of native title in relation to the land and waters in question. 2 Two of the 19 August 2015 orders required the Walsh River Respondents to take certain steps. They were: (a) Order 6 - on or before 10 September 2015 to file and serve any reply to the responses filed by the other parties; (b) Order 9 - on or before 24 September 2015 to indicate to the other parties whether they intended to press the application for discovery filed on 4 February 2013. 3 The Walsh River Respondents did not comply with either of these orders by the dates fixed. With respect to Order 6, the two reply documents in question were not filed until 9 November 2015, about two months late. With respect to Order 9, the Walsh River Respondents took two relevant steps: (a) On 28 September 2015, their solicitor, Ms English, sent a letter by email to the other parties to the proceeding stating that her clients intended to "press their application for disclosure filed in February 2013 albeit in amended form". Ms English went on to say that she intended to file an amended application for disclosure by 1 October 2015. That did not eventuate. (b) Then, on 4 November 2015, the Walsh River Respondents lodged an interlocutory application seeking to withdraw their application for discovery filed 4 February 2013 and to replace it with a new or amended application. 4 In my view, Ms English's letter of 28 September 2015 was sufficient to comply with Order 9. However, that indication was given four days late. 5 The interlocutory application lodged by the Walsh River Respondents on 4 November 2015 (which was accepted for filing on 11 November 2015) sought an extension of time for compliance with Order 6, but they did not seek any such extension for compliance with Order 9. However, at the relisted hearing of this matter, they did make an oral application for an extension of time in relation to Order 9. 6 These reasons are directed to the two applications for extension of time mentioned above which I heard on 13 November 2015. It was necessary to relist this matter on 13 November 2015 because the delays in complying with these orders, particularly with Order 6, adversely affected the process that had been set in place by the 19 August 2015 orders. In the ordinary course, this proceeding was not due to be reviewed until 5 February 2016. 7 It is trite to say that this Court has a discretion to allow an extension of time, whether that be to comply with an order of the Court, or one of the Rules of the Court, or otherwise. The fundamental question in such an application is whether it is in the interests of justice to allow the extension of time. In answering that question, the factors that have traditionally been considered include, but are not limited to: (a) the extent of the delay; (b) whether the applicant has provided a satisfactory explanation for the delay; (c) whether any prejudice will be caused to the other parties; and (d) the prejudice that the applicant will suffer if the extension is not allowed. Many of these factors overlap. 8 To these traditional factors must now be added case management principles and the over-arching purpose of civil litigation set out in s 37M of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), namely the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. In Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27 French CJ emphasised (at [30]) the public interest considerations at play in these factors when his Honour rejected the proposition that: … the waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of [this] kind … 9 His Honour went on to say (at [30]): Also to be considered is the potential for the loss of public confidence in the legal system which arises where a court is seen to accede the applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes. 10 Because the delay involved is significantly shorter, I will deal first with the oral application that the Walsh River Respondents have made for an extension of time to comply with Order 9. As I have already noted, the indication required by that order was given four days late. This is quite a short period of time, made all the more so by the fact that two of those days fell on the weekend of 26 and 27 September 2015. Further, I do not consider this delay, by itself, has had any real detrimental effect on the process I mentioned earlier. I do not therefore consider the other parties have suffered any real prejudice as a result of this delay. While I do not consider the Walsh River Respondents have offered a satisfactory explanation for this delay - a factor I will examine in more detail shortly when I come to consider the other application - in all the circumstances, I consider it is in the interests of justice to allow this extension of time. 11 I turn, then, to the application to extend the time for compliance with Order 6 and the various factors I mentioned above. 12 First, I consider the extent of the delay for compliance with Order 6 significant. At approximately eight weeks, it is almost three times the amount of time originally allowed for this step to be taken, namely three weeks. Moreover, Order 6 was important in the context of the case management of this proceeding which was, as I have already mentioned, directed, in part, to having the Walsh River Respondents' issues in this proceeding identified and resolved early in 2016. Because of this delay, the prospect of this happening has been reduced. That, in turn, will delay the timely resolution of the whole proceeding. In my view, this outcome is an affront to the case management principles I mentioned before and it is the antithesis of the quick and efficient resolution of this proceeding mandated in the over-arching purpose expressed in s 37M of the Federal Court Act. These consequences are compounded by the fact that this proceeding has now been on foot since 2001 - more than 14 years. 13 Secondly, I agree with Mr del Villar, Counsel for the State, that the Walsh River Respondents have not provided a satisfactory explanation for this delay. He has pointed out that there are essentially three components to the explanation proffered in an affidavit filed by Ms English. 14 The first explanation appears at paragraphs 28 to 30 of Ms English's affidavit. There, she details certain health issues that confronted her family between 10 August 2015 and 30 October 2015. She also mentioned a week's leave that she had to take in early October 2015. However, she concluded (at paragraph 29 of her affidavit) by saying: "I offer them not as an excuse but by way of partial explanation for the unfortunate delay" and further (at paragraph 30): "these distractions on health issues over the past three months have contributed to the delay". 15 The difficulty with these assertions is their generality. Ms English has made no attempt in her affidavit to provide any direct causative link between any of these events and any particular period of delay. Further, as Mr del Villar has pointed out, the first surgical event on 10 August 2015 occurred before the orders in question were made on 19 August 2015 and the last two events occurred weeks after 10 September 2015, the date for compliance with Order 6. 16 Moreover, Mr del Villar relied on a number of emails which passed between Ms English, Deputy District Registrar Fewings and the parties to this proceeding in September and October 2015. The pertinent parts of those emails are as follows: (a) On 10 and 11 September 2015, Ms English sought and obtained a 14 day extension of time from Deputy District Registrar Fewings for compliance with Order 6 because she had "only just received an extension of Legal Aid funding" and she claimed no prejudice would be suffered by any other parties. That extension was granted, but the reply documents required by Order 6 were not filed by 24 September 2015. (b) When Deputy District Registrar Fewings sent an email to Ms English on 25 September 2015 noting that the 14 day extension had expired without compliance, she responded on 28 September 2015 saying: "I am just conferring with Counsel who is settling the draft Reply now". (c) Another nine days elapsed and, on 7 October 2015, Ms English's locum sent an email seeking further extensions of time of seven days to file the reply documents and 14 days to file the amended application for discovery on the ground that "we underestimated the size of the task, but final drafts are now with counsel to settle". 17 As I have already noted above, it was not until the first week of November 2015 that the Walsh River Respondents eventually filed the reply documents required by Order 6 and the amended discovery application related to Order 9. 18 It is notable that none of the emails described above made any mention of any health issues as affording any explanation for the delay for compliance with Order 6. The main reason advanced in those emails appears to have been delays associated with counsel settling the draft reply documents. 19 I do not therefore consider that the health issues that confronted Ms English and her family, distressing as they undoubtedly were, provided a satisfactory explanation for the delay in the Walsh River Respondents' complying with Order 6. 20 The second explanation is contained at paragraph 31 of Ms English's affidavit. This explanation is primarily directed to the disclosure application the subject of Order 9. Nonetheless, it is indirectly relevant to the reply documents required by Order 6. Ms English stated in that paragraph that, in order to review her clients' disclosure requirements, she had to "conduct lengthy review of the documents" held by the 17 individual respondents concerned dating back to 2013 and that she "underestimated the size of the task and time required to undertake it". As I have already mentioned, this underestimation is also referred to in the email that Ms English's locum sent to the other parties in October 2015 (see at [16(c)] above). 21 The Walsh River Respondents first became respondent parties in this proceeding in about mid-2003. In the 12 years, or more, that have elapsed since then, I consider Ms English should have had more than sufficient time to familiarise herself with her clients' cases and, among other things, ascertain what, if any, application they needed to make for discovery. I therefore reject this explanation for the Walsh River Respondents' delay insofar as it may have affected compliance with Order 6. 22 The third explanation is contained in paragraph 32 of Ms English's affidavit where she points to a "recent change of heart on the part of the State referred to in paragraph 12 above" as partly explaining the delay. I am not exactly sure what this statement means because the paragraph to which reference is made - paragraph 12 - does not appear to me to identify any such change of heart on the part of the State. Nonetheless, Ms English claimed that this caused the delay in preparing the Walsh River Respondents' reply and notifying the other parties of their intentions in relation to discovery. 23 I reject this explanation as well. I do so because, based on the affidavit of Mr Luxford, an officer of the Queensland Department of Natural Resources and Mines, dated 12 November 2015, I am satisfied that Ms English was provided with copies of all the State's relevant tenure history research relating to the subject land in January and March 2013, some two and a half years before the 19 August 2015 orders were made. I do not therefore consider this matter explains why the Walsh River Respondents failed to comply with this Order within the time allowed. 24 To sum up, I do not consider the Walsh River Respondents have provided a satisfactory explanation for their delay in complying with Order 6. 25 The next factor I take into account is the prejudice this delay has occasioned to the other parties to this proceeding, particularly as it affects its ultimate resolution. I do not need to repeat what I have already said above on that topic. 26 However, despite all these factors weighing against the exercise of my discretion to grant this extension of time, I am ultimately persuaded it is in the interests of justice to allow it on certain conditions. My main reason for reaching this conclusion stems from the contents of the Walsh River Respondents' two reply documents, the salient parts of which are reviewed in the following paragraphs. 27 The main matters canvassed in the Walsh River Respondents' reply to the State's response can be summarised in these terms: (a) it responds to a limitations issue that is raised by the State in its response; (b) it responds to an issue relating to the construction of the Land Act (Qld) that is also raised by the State in its response; (c) it claims that the occupation licences granted to certain Walsh River Respondents extinguish native title; (d) it claims that, notwithstanding the High Court decision in State of Queensland v Congoo (2015) 320 ALR 1; [2015] HCA 17, the Walsh River Respondents can rely upon military activity on parts of the land in question to claim that native title has been extinguished; (e) it claims that the permits to occupy held by certain of the Walsh River Respondents extinguish native title; and (f) it makes claims based upon the effect of certain applications for lease and the like made by certain of the Walsh River Respondents to the State. 28 The main issues canvassed in the Walsh River Respondents' reply to the Applicant's response can be summarised as follows: (a) it agrees with the statements made in a number of paragraphs of the Applicant's response; (b) it gives further details of the basis upon which the Walsh River Respondents claim to have interests in the land in question; and (c) it also sets out in more detail how it is that the Walsh River Respondents say that native title is extinguished in relation to various parts of the land in question. 29 Both reply documents also raise an issue about the native title claim group's continuing connection with the land in question. That issue was not raised in the Walsh River Respondents' original facts, issues and contentions statement. I will return to this issue later in these reasons. 30 The most significant part of the Walsh River Respondents' two reply documents appears in their reply to the State's response, where they have replied to the State's reliance upon a limitations issues to challenge their claims to have interests in the land in question. If I were to refuse the Walsh River Respondents' application to file, and therefore rely upon, their reply to the State's response on this limitations issue, that would effectively prevent them from defending the State's claims in that regard. In all the circumstances of this matter, and despite the many failings of the Walsh River Respondents and their legal representatives, which I canvassed earlier, I do not consider it would be in the interests of justice to prevent the Walsh River Respondents from defending the State's reliance on that issue. 31 Then, with the exception of the new issue I have mentioned, most of the other matters canvassed in the Walsh River Respondents' two reply documents variously, either: (a) make contentions on matters of law; (b) provide further particulars of the claims made by them in their original facts, issues and contentions statement; or (c) agree with statements made in the response of the applicant. 32 While it is true that the Walsh River Respondents should have fully particularised their claims in their original facts, issues and contentions statement instead of in their reply documents, in the circumstances, I consider it would be time-consuming, costly and inefficient to require them to remove those particulars from their reply documents and to amend their facts, issues and contentions statement and insert them in that document. Furthermore, now that those particulars have been provided in their reply documents, one may expect that everyone will benefit from knowing precisely how they propose to put their case. In saying this, I should not be taken to be expressing any agreement with the validity of the contentions contained in those particulars. Some of them appear, at first blush, to raise some novel propositions. 33 As to the contentions of law raised in their two reply documents, while those would not usually be permitted in a traditional reply pleading, limited as it is to material facts, I do not consider they are incongruent in a facts, issues and contentions process of the kind presently being pursued in this proceeding. Moreover, if I required those contentions to be removed from these documents, it is not difficult to predict they will likely emerge in any outline of submissions the Walsh River Respondents eventually file prior to any hearing to determine the issues they wish to raise. That being so, I consider that the most efficient course is to allow those contentions to remain in their reply documents. 34 However, I do not consider this somewhat pragmatic approach can, or should, be taken in relation to the new issue the Walsh River Respondents have sought to raise in their reply documents. To explain why this is so, it is necessary to briefly recount some of the recent history of this proceeding. It is convenient to begin at the directions hearing held on 11 June 2015. The central concerns at that hearing were the identification of the issues that the Walsh River Respondents wished to raise for determination in this proceeding, ascertaining whether those issues could and should be determined in this proceeding and, if so, adopting a process which would allow those issues to be resolved as quickly and efficiently as possible. In the course of that directions hearing, I stated that: … I'm not satisfied at this stage that the issues that the … Walsh River respondents, wish to raise have been sufficiently identified to enable me to determine whether or not they should be dealt with separately. Whether that's by way of splitting Bar-Barrum number 5 or by some other process. What I propose to do to address that situation is to have Ms English, on behalf of her clients, define precisely … the issues that they wish to raise, identifying that perhaps by reference to the document that they've already filed. 35 And later I explained how I intended the orders I made to operate, in the following terms: The Walsh River Respondents are to file a statement of facts, issues and contentions to comply with practice note CM8, paragraph 4.2. Just for your instruction, Ms English, you will see that that requires you to state the nature of the dispute. So that will mean, among other things, identifying whether it relates to extinguishment or connection, or the like, by reference to the Native Title Act. The issues that you believe arise … Your contentions on those issues, and the relief that you will be claiming as a respondent. 36 Orders were then made in substantially those terms. As well, the parties were ordered to file submissions before the next directions hearing outlining how they submitted the issues that had been properly identified by the Walsh River Respondents should be progressed to a determination. 37 The next directions hearing was held on 30 July 2015. By that date, the Walsh River Respondents had filed their facts, issues and contentions statement. In it, they raised one primary issue, which can be summarised as: whether native title had been extinguished over various parts of the land in question by various grants made to certain of the Walsh River Respondents and activities conducted on the land in question by the Walsh River Respondents and other agencies. However, the facts, issues and contentions statement also hinted, at least in qualified terms and in the alternative, that the Walsh River Respondents may wish to pursue an issue about the native title claim group's continuing connection with the land in question. It did that in these terms (paragraph 3.3): That subject to the provision of the applicants (sic) connection report, the Walsh River Respondents do not admit the applicant's connection to any of the areas the subject of rights and interests claimed by the Walsh River Respondents respectively and/or to the Roads … 38 It should be noted that this qualification was the only part of the statement that mentioned connection in these terms and that no relief appeared to be claimed in the "Relief Claimed" section of the statement with respect to it. However, there were also some references in the statement to native title connection to the land being "severed" but, in context, those references appeared to refer to the extinguishment of native title, rather than to native title not continuing to exist because of a failure of the native title claim group to maintain a continuing connection with the land in question. 39 At the further directions hearing on 30 July 2015, I raised this aspect of the statement with Mr Greenwood QC, Counsel for the Walsh River Respondents, at some length and sought clarification from him about it. His final response to my questioning was in the following terms: Your Honour, certainly I had assumed that native title did exist in this part of Queensland but subject to the contention that, as a result of the land - the relevant land - being used for field firing exercises during the Second World War, that that certainly was grounds for argument that native title had been terminated as a result of that activity on the land and adjoining the land and affecting access to the land. 40 Based on that clarification, I considered it was clear that the Walsh River Respondents did not wish to contest the native title claim group's claim to have maintained a continuing connection with the land in question. This clarification also removed the necessity for me to consider whether, if the Walsh River Respondents wished to pursue such an issue, they had a satisfactory prima facie basis to do so sufficient to justify them being permitted to agitate that issue as a respondent party in this proceeding. 41 Notwithstanding this procedural history, the Walsh River Respondents' reply documents now appear to seek to raise that issue. First, in their reply to the State's response, it is raised somewhat ambiguously at paragraph 57, but more clearly at paragraphs 140-141. The clearer statement is at paragraph 140, as follows: In the face of evidence from the Respondents to the contrary, there is no evidence before the court of a continuation of the exercise of native title rights and interests by the Applicants in the areas occupied by the Respondents if Native Title has not been extinguished (which is not admitted by the Respondents). 42 In their reply to the Applicant's response, it appears to be raised in general terms at paragraph 4(i) and (ii), but more clearly at paragraphs 23, 24 and 30. For example, at paragraph 24, they stated: By the exercise of the rights and interests claimed by the Respondents as well as the facts of occupation the Respondent's (sic) contend that the Applicants cannot demonstrate that the acknowledgment and observance of Native Title laws and customs have "continued substantially un-interrupted since sovereignty. 43 In view of the procedural history of this issue as outlined above, the fact that the State and the Applicant have informed me that they have reached an "in principle" agreement that native title exists on the land in question and in view of the absence from the Walsh River Respondents' facts, issues and contentions statement of any factual basis providing prima facie support for the Walsh River Respondents' challenge to the continuing existence of native title on the land in question, I do not consider it is in the interests of justice to allow the parties' resources or public resources to be devoted to determining that issue in this proceeding. I should, however, make it clear that this only applies to the Walsh River Respondents contesting the question whether native title continues to exist on the land, not to whether, assuming it does or did exist, it has been extinguished in one or other ways prescribed in the Native Title Act 1993 (Cth) (the Native Title Act) and identified by them in the facts, issues and contentions statement of their reply documents. In particular, if the Walsh River Respondents intend the word "sever", where they have used that word in those documents, to have the same meaning as the word "extinguish" in the sense used in the Native Title Act, then this restriction will not apply to that question. 44 I therefore propose to order that the Walsh River Respondents be granted the extension of time necessary to allow them to file their two reply documents on the condition that the following paragraphs are deleted: (a) from the reply to the State's response - paragraphs 50, 140 and 141; and (b) from the reply to the applicant's response - paragraphs 4(i) and (ii), 23, 24 and 30. 45 However, should the Walsh River Respondents wish to propose and amend the form of any of those paragraphs to address the qualification I have expressed above about the use of the word "sever", I will give them leave to do that provided the form of the amendment is provided to the other parties promptly and they consent to the amendment in that form. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.