Dale & Ors v State of Western Australia & Ors

[2011] HCATrans 332

[2011] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P17 of 2011

B e t w e e n -

BETTY DALE AND TIM DOUGLAS AND CANE HICKS AND DALLAS HICKS AND WILFRED HICKS AND ERNIE RAMIREZ

Applicants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

ROBERT BRUCE LOWDEN AND JOE RINKENS AND WESTERN AUSTRALIA FISHING INDUSTRY COUNCIL (INC)

Second Respondents

D A COOK AND P G COOK AND COOLAWANYAH PASTORAL CO PTY LTD AND DM & JA SAMBELL AND YALEEN PASTORAL CO PTY LTD

Third Respondents

SHIRE OF ROEBOURNE

Fourth Respondent

AUSTRALIAN MARITIME SAFETY AUTHORITY AND COMMONWEALTH OF AUSTRALIA

Fifth Respondents

TELSTRA CORPORATION LIMITED

Sixth Respondent

AUSTEEL PTY LTD AND BHP PETROLEUM AND BP DEVELOPMENTS AUSTRALIA PTY LTD ACN 081 102 856 AND CHEVRON ASIATIC LIMITED AND VERONICA PATRICIA DEVINE AND R S HIBERS AND C P HILBERS AND JAPAN AUSTRALIA LNG (MIMI) PTY LTD AND MINERALOGY PTY LTD AND MITSUI IRON ORE DEVELOPMENT PTY LTD AND NIPPON STEEL AUSTRALIA PTY LTD AND NORTH MINING LIMITED AND NORTH WEST SHELF PTY LTD AND ROBE RIVER MINING CO PTY LTD AND SHELL DEVELOPMENT (AUSTRALIA) PTY LTD AND SUMITOMO METAL AUSTRALIA PTY LTD AND WOODSIDE ENERGY LTD

Seventh Respondents

SANTOS OFFSHORE PTY LTD

Eighth Respondent

JEAN LOCKYER

Ninth Respondent

COSSACK PEARLS PTY LTD AND DAMPIER PEALING COMPANY PTY LTD

Tenth Respondents

INTROX PTY LTD

Eleventh Respondent

KERRY CHURNSIDE AND JIM FREDERICKS AND PANSY HICKS AND MAX SAMBO AND VIOLET SAMSON AND NORMAN SMITH AND JOHN WEDGE

Twelfth Respondents

Application for special leave to appeal

HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 DECEMBER 2011, AT 10.32 AM

Copyright in the High Court of Australia

____________________

MR B.A. KEON-COHEN, QC:   May it please the Court, I appear with my learned friend, MR R.I. VINER, QC, for the applicants.  (instructed by Kitto & Kitto Barristers & Solicitors)

MR G.T.W. TANNIN, SC:   May it please the Court, with MR M.S. PUDOVSKIS I appear for the first respondent.  (instructed by the State Solicitor (WA))

MS R.J. WEBB, SC:   May it please the Court, I appear with MR C.L. TAN for the ninth and the twelfth respondents.  (instructed by Yamatji Marlpa Aboriginal Corporation)

HAYNE J:   There are submitting appearances for the second and third second respondents; the third; the fifth; the first named seventh and ninth to fourteenth named seventh; the sixteenth and seventeenth named seventh; and the eighth respondents.  There is no appearance, I think, for the remaining respondents, is that right?

MR KEON-COHEN:   I understand that to be the case, your Honour.

HAYNE J:   Yes.  Yes, Mr Keon-Cohen.

MR KEON-COHEN:   If your Honour pleases.  Your Honour, there is a preliminary matter.  There is a minute of a proposed amended added ground to the notice to the grounds of appeal which has been circulated to my friends in the Court.  It goes to a rather obvious point concerning what we assert is total failure by the Full Court to address an issue, the Kuligowski issue.  There were substantial written and oral submissions on the issue and the Full Court simply ignored it.  In our submission, our ground was not originally included and we submit it is a point that should be before this Court and a point of administration of justice and, if you like, the vested jurisdiction.  I am not sure of the attitude of my learned friends to that application.

HAYNE J:   Perhaps if you go on with your argument and we will see where we get to.

MR KEON-COHEN:   Thank you, your Honour.  Your Honour, in this case, with our written submissions, we rely upon our written submissions.  They reveal, assuming the added ground is admitted, seven grounds of appeal.  The primary ground is ground 1 in the application book.  That is at pages 99 to 100 where the common law doctrine of abuse of process, when applied to a claim for a determination of native title under the Native Title Act, is altered or developed in a manner responsive to the Native Title Act regime.  Your Honours, this Court two days ago delivered the decision of Moti.  It relied on an important precedent in this area of the law concerning issue estoppel and abuse of process, Batistatos, and in paragraph 9 the Court said:

What amounts to abuse of court process is insusceptible of a formulation comprising closed categories.  Development continues.

In our respectful submission, this is a vehicle whereby this Court might address serious issues which have arisen under the Native Title Act concerning the application of abuse of process first and, secondly, the associated doctrine of issue estoppel.  I put it that way, your Honour, because the history of this litigation demonstrates that initially issue estoppel was run and arguments were put on the second day of argument before the Full Court.  Abuse of process was raised late in the proceedings.  The court accepted that over objection.  The court delivered a judgment which, in our respectful submission, has unsatisfactory features which did not address the issue upon which argument primarily went, ie, issue estoppel in a way argued. 

KIEFEL J:   Could I just clarify something with you.  I know that questions were raised about the application of issue estoppel in the context of the Native Title Act regime, but do you say that questions of abuse of process also have some difficulty because of the Native Title Act regime?

MR KEON-COHEN:   Yes we do, your Honour. 

KIEFEL J:   How?

MR KEON-COHEN:   We say that abuse of process is founded in this particular case upon the same basis as issue estoppel was argued, that is to say, a prior decision adversely decided against the applicants being sought to be re‑litigated in subsequent proceedings.

KIEFEL J:   But issue estoppel in the context of native title creates different issues because of consolidation orders and whether or not you are truly parties to the proceedings and the nature of the determination.  They are discrete matters.  But abuse of process is abuse of process in any proceedings, is it not?

MR KEON-COHEN:   It is, your Honour, but, in our submission, the consolidation orders also have an impact on the way in which a claim of abuse of process should be assessed by the Full Court and by the judge at first instance. 

HAYNE J:   As to this notion of consolidation orders, although frequently referred to as consolidation orders, they are, in truth, orders for hearing and determination by the same judge at the same time, are they not, rather than true consolidations?

MR KEON-COHEN:   With respect, your Honour, section 67(1) of the Act governs this.  Section 67(1) is a mandatory provision.  It says that where claims overlap, essentially, in respect to an area of land “the Court must make” an order.

HAYNE J:   Yes, dealt with in the same proceeding.

MR KEON-COHEN:   The result, your Honour, as discussed by the Full Court, is a proceeding involving an area of land over which a determination of native title will be made.

HAYNE J:   Just so.

MR KEON-COHEN:   And that area of land by reason of consolidation orders comprised, in this case, three or four native title claim groups.

HAYNE J:   And what was happening was the trial of part of your clients’ claim.

MR KEON-COHEN:   Correct, your Honour.

HAYNE J:   At the same time as the trial of part or all of other parties’ claims.

MR KEON-COHEN:   Correct, your Honour.

HAYNE J:   The determination was made at the trial of a part of your clients’ claim that the plaintiffs were not a group of a character entitled to make a claim.

MR KEON-COHEN:   Correct, your Honour.

HAYNE J:   Now, can you at the later trial of the balance of your clients’ claim put in issue that question again?  That is the question.

MR KEON-COHEN:   In our respectful submission, we can and we should be allowed to.  Firstly, in the context of abuse of process, the decisions made, your Honour refers to, came to, firstly, society, secondly, the practice of traditional law and custom.  Those decisions were made under 223.  They are decisions of mixed fact and law.  They are not the ultimate decisions provided for by the Native Title Act.  That is its decision of determination under section 225.

HAYNE J:   That is undoubtedly true.

MR KEON-COHEN:   Yes.  And, in our submission, your Honour, in the context of an abuse of process application that decision is not final or determinative.  The decision in question, for example, is was the Wong‑Goo‑TT‑OO group a society?  That was a decision made by his Honour the trial judge approved in the Full Court by Daniel and Moses, but nevertheless, in our submission, not one which should preclude our clients from proceeding to the second proceeding. 

KIEFEL J:   But what do you say if you are correct in your second proceeding and there is a finding that they were a social group capable of holding native title?  You have two inconsistent decisions. 

HAYNE J:   In the one action, in the one proceeding.

MR KEON-COHEN:   I understand, your Honour.  The underlying policy is bringing the administration of justice into disrepute by reason of two conflicting decisions.

KIEFEL J:   And finality.

MR KEON-COHEN:   In our submission, your Honour, first, one needs to be wary of applying that doctrine piecemeal in a blanket unexamined way to an application under the Native Title Act.  The reason is that the decisions in the second proceeding in respect of, for example, practice of custom and law, might be very different as a matter of ultimate facts under section 223.

CRENNAN J:   One has to bear in mind, does one not, that the original determination was made on evidence after, I imagine, a hearing of significant length. 

MR KEON-COHEN:   It was, your Honour.

CRENNAN J:   As I understood the position in the Full Court, there was additional evidence before the Full Court which, in essence, repeated, albeit in more detail, the evidence that had been before his Honour Justice Nicholson.

MR KEON-COHEN:   One of our grounds of review, your Honour, seeks to attack that assessment by the Full Court of that evidence, but that aside, in our submission ‑ ‑ ‑

CRENNAN J:   Another aspect to it would be whether or not there had been a full explanation or a satisfactory explanation in relation to the need to supplement evidence in circumstances where the very same issue had to be resolved earlier.

MR KEON-COHEN:   Your Honour, there is an explanation that might be raised by inference from the nature of a split claim.  The consolidation provisions halve the claim essentially; 25,000 square kilometres to 13.  The split in that geographical area required focus for the proceedings before Justice Nicholson in the trial on the eastern half of that large area.  That developed certain evidence, certain witnesses and certain responses by the trial judge. 

CRENNAN J:   But the finding, the determination that the plaintiffs were not a group capable of holding native title did not turn on geographic considerations.

MR KEON-COHEN:   That is correct, your Honour, but, in our submission, the second issue did, that is to say practice of custom and tradition, which can be very specific to areas, to people, to rights asserted, to the interests of Crown grantees, to particular rights and as to the society issue, your Honour, for abuse of process purposes we have to keep that particular issue in mind.  It does not, in our submission, constitute on a balance of justice, on the exercise of discretion, a sufficiently firm decision under section 223 to bar our clients from pursuing a statutory right, ie, to pursue a claim.

KIEFEL J:   What does the practice of law and traditions matter if there is a finding of no continuity of the social group?

MR KEON-COHEN:   In that sense, your Honour, it does not matter.  The fundamental point, as indicated by the Full Court, is that this adverse finding regarding society was an insurmountable obstacle to the plaintiffs seeking to pursue a second claim.  In our respectful submission, that is an inadequate assessment of this issue in an application for abuse of process and the reason is, and I have sought to articulate, that these are fact specific claims, as this Court has said as much, that is to say, a finding under section 223, not 225, a finding, as Sir Owen Dixon said in Cohen’s Case, a stepping stone in the process of decision‑making to the ultimate decision, a finding under 223 even about society is a question of fact and law and it is not the ultimate decision provided for under the Native Title Act.

Your Honour, there is, we would submit, a further important factor to remember when assessing these questions and that is the proposition put by your Honour Justice Hayne, that is to say, this was arising by reason of consolidation provisions of the Act and that affects seriously, in our submission, the way the proceedings go forward.  They are mandatory.  Our clients did not seek it. 

KIEFEL J:   It is nevertheless a determination of native title in relation to not only land, but the groups.

MR KEON-COHEN:   There is, your Honour, but one needs to be careful about what the determination actually was.  Justice Nicholson determined a number of things.  Firstly, a positive determination in regard to the consolidated area before him that Ngarluma and Yindjibarndi groups both held native title in two separate areas.  Secondly, a dismissal of two other native title claims, one of them being my client’s, the Wong‑Goo‑TT‑OO’s claim.  That, your Honour, is a dismissal.  It is not a determination.  It might be said by my learned friends that a determination in respect of an area being in rem in respect of two native title groups and not a third group before the court is, at least by inference, a determination that the third group, the Wong‑Goo‑TT‑OO group, held nothing in respect to that area.  But one needs to look again at the precise terms of his Honour Justice Nicholoson’s determination.

KIEFEL J:   This argument is more relevant to the question of issue estoppel, but in terms of abuse of process it remains the fact that you would be re‑litigating the question of the societal group.

MR KEON-COHEN:   We submit not, your Honour, because the re‑litigation would involve a question under section 223, not 225.  There is a distinction to be made.  We may be re‑litigating that point, but for the purposes of abuse of process in the balancing of interests and the exercise of discretion that should not have been persuasive.  The second point to make is if one looks to the principles enunciated by his Honour Justice French, as he then was, the principles extracted from Stenhouse at application book page 80 – can I take the Court to that – his Honour there, at the bottom of page 80, looks at seven factors extracted from the Stenhouse judgment and if I may read the preliminary lines:

‘… whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances.  The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice…’

There are many dicta from this Court which speak about injustice as a subjective notion.  These are not rigid principles.  They have to be applied in each case and a judicial assessment made.  His Honour then went through seven points.  Firstly:

‘(a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue –

Your Honour Justice Kiefel has asked about that.  We submit this is, in truth, more an evidentiary issue than an ultimate issue under section 223.  Indeed, it might be said it is neither.  It lies somewhere between the two, but it has been treated without, in our submission, proper examination.  Secondly –

(b)the opportunity available and taken to fully litigate the issue –

There was a long trial and opportunity was certainly provided.  Next –

(c)the terms and finality of the finding as to the issue –

Your Honour, we submit, on our Kuligowski argument, that this was not final in the terms required by this Court’s decision in Kuligowski, that is to say, the decision, the language used when one looks at the totality of language from Justice Nicholson, the language used is one of failing to be satisfied that onus of proof not be discharged.  This, we submit, is not required finality of findings –

(d)the identity between the relevant issues in the two proceedings –

There is a close but, in our submission, merely an issue of fact and law identity as to society.  There is a lesser identity, in our submission, as to the practice of law and custom –

(e)any plea of fresh evidence –

and the reason why it was not put.  In our submission, before the Full Court there was a plea of fresh evidence and there was criticism from the Full Court as to why no reason was expressed as to why that material was not put before the trial judge.  I sought to explain that.  In our submission, it arises from the nature of a split claim, the nature of inquiries engaged in focusing first on one half and then on a second more western half.  When inquiries were pursued concerning the Western half new witnesses, new facts emerged, including concerning the critical fact, ie, a genealogical connection as alleged between two sisters, being the atypical ancestors between the Ramirez family and the Hicks family –

(f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence –

Your Honour, as to that, in our submission, one needs to look carefully at the complex history of respondents in this matter.  The chronology that I provided to the Court and my friends some days ago indicates something of this.  When this claim was issued in 1998, there was one respondent, the State of Western Australia.  When the matter came on before Justice Nicholson and when judgment was delivered in May 2005 there were 32.  Twelve of those were not involved in the consolidated hearing.  When the matter came before Justice McKerracher on the strike out application in 2009 there were 35.  When the matter comes before this

Court today, if one looks at the first page of the application book, there are 35 and three only are agitated enough to appear today. 

Further, your Honour, those respondents had, I am instructed, a very variable participation in the trial before Justice Nicholson.  Questions, therefore, of vexing twice though apparent in a blanket way at first impression, in our submission, have to be looked at much more closely.  The other point made at point (f) is a question of –

public confidence in the administration of justice –

Your Honour, this Court has just delivered an assessment of just what does public confidence in the administration of justice mean in the Moti decision and it is a questionable proposition, as this Court indicates in that decision, which needs to be examined in each case.  In our submission, there can be little decrease in public confidence in this jurisdiction were this matter to proceed to a second trial because parties would be different.  One could only assume the State would be three since it acts for the public in an in rem action and one cannot assume that everyone would be there or would participate because attendance is voluntary and attendance is very much guided by what interests are affected for each party.  So, your Honour, whether or not public confidence would be diminished should a further court on a second trial make a different decision regarding society for abuse of process purposes needs to be carefully examined, in our submission.

HAYNE J:   Yes, thank you, Mr Keon‑Cohen. 

MR KEON-COHEN:   Thank you, your Honour.

HAYNE J:   The Court will adjourn for a time to consider the course it will take in this matter.

AT 10.55 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.00 AM:

HAYNE J:   The Court will not trouble you, Mr Tannin or Ms Webb.

The applicants, as representatives of three families said to constitute the Wong‑Goo‑TT‑OO people, made a claim for native title to an area in the Pilbara region of Western Australia.  Others made similar claims to parts of the area to which the Wong‑Goo‑TT‑OO group made claim.  Claims made by the Wong‑Goo‑TT‑OO group and others to some of the land were heard and a preliminary determination was made by the Federal Court of Australia in 2003.  A final determination was made in 2005.  The primary judge, Justice Nicholson, found that:

(a)the Wong‑Goo‑TT‑OO claimants did not form a single cognatic kin group;

(b)there was no continuity in the mutual or common relation based on family connection established between all members of the Wong‑Goo‑TT‑OO group; and

(c)the claim of the Wong‑Goo‑TT‑OO group to be a traditional group was not made out.

Because the Wong‑Goo‑TT‑OO group was found not to be a group capable of holding native title, its claim to part of the area failed.  These findings were not disturbed on appeal to the Full Court of the Federal Court and an application for special leave to appeal to this Court failed.

The applicants sought to pursue their claims to the balance of the area the subject of their claim as originally framed.  The State of Western Australia sought and obtained orders from Justice McKerracher summarily terminating the applicants’ claim.  The applicants’ appeal to the Full Court of the Federal Court failed.  The Full Court held, contrary to the opinion of the primary judge who founded his decision on principles of issue estoppel, that the claim should be stayed as an abuse of process.  The applicants now seek special leave to appeal to this Court.

To succeed in those parts of the claim the applicants originally made which have not already been finally determined against them, the applicants must controvert conclusions reached in that part of their claim that has been determined.  Because the parties to be heard in respect of the balance of the applicants’ claim differ from those in that part of the claim that has been heard and determined, principles of issue estoppel, if otherwise applicable, would not be engaged, at least in respect of persons not parties to the earlier proceedings.  Because the land the subject of the claim now under consideration differs from the land the subject of the determination made in the earlier proceedings, principles of estoppel by record, whether as applicable to actions in rem or otherwise, are not engaged.  There is, however, no reason to doubt that principles of abuse of process can be engaged and it is well settled that an attempt to re‑litigate an issue which has been resolved in earlier proceedings may constitute an abuse of process even though the earlier proceedings did not give rise to a res judicata or issue estoppel.

The question of whether the Wong‑Goo‑TT‑OO group was a cognatic kin group or traditional group capable of holding native title which would arise for determination in the present proceedings, arose in the earlier proceedings and was as central in those proceedings as it is in the present case.  The earlier adverse finding on this issue, depending in part upon a finding that there was no continuity of the Wong‑Goo‑TT‑OO group as a social group, was a conclusion about an issue fundamental to the whole of the applicant’s claim and it did not depend on factors relevant to any geographical area.

Having regard to those facts and circumstances, the applicants enjoy insufficient prospects of success in an appeal against the finding that there was an abuse of process in this particular case to warrant a grant of special leave.  Special leave is accordingly refused.

Court will adjourn to reconstitute.

AT 11.04 AM THE MATTER WAS CONCLUDED