Dale v Western Australia

Case [2009] FCA 1201

FEDERAL COURT OF AUSTRALIA

Dale v State of Western Australia [2009] FCA 1201

NATIVE TITLE – application under O 20 r 4 Federal Court Rules (FCR) for summary dismissal – issue estoppel – earlier determination by Court that native title claimants could not establish continuity of existence as a group since sovereignty – whether ultimate ‘findings’ made in earlier determination – whether same issue had been decided – whether the parties to the determination were the same

PRACTICE AND PROCEDURE – principles applicable to an application under O 20 r 4 FCR for summary dismissal

Federal Court of Australia Act 1976 (Cth) s 31A
Native Title Act 1993 (Cth) ss 13(1), 61, 61(1), 67(1), 85A, 223, 223(1)

Federal Court Rules O 20 r 2, O 20 r 4

Australian Building Industries Pty Ltd v Stramit Corporation Limited & Anor [1997] FCA 1318
Blair v Currun (1939) 62 CLR 464
Bodney v Bropho (2004) 140 FCR 77
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No.2] [1967] 1 AC 853
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322
Dale v Moses [2007] FCAFC 82
Daniel v State of Western Australia [2003] FCA 666
De Rose v South Australia (No 2) (2005) 145 FCR 290
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537
Kuligowski v Metrobus (2004) 220 CLR 363
Lancee v Willert [2008] WASCA 120
Lombardo v Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159
Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
Moran v Minister for Land & Water Conservation for the State of New South Wales [1999] FCA 1637
Moses v Western Australia (2007) 160 FCR 148
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Phillips v State of Western Australia [2000] FCA 1274
Quall v Northern Territory of Australia [2009] FCA 18
Risk (on behalf of Larrakia People) v Northern Territory and Others (No NTD 5 of 2006) (2007) 240 ALR 75
Risk v Northern Territory of Australia [2006] FCA 404
Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686
Squires Transport Pty Ltd v Turnor [2004] WASCA 245
Supreme Court of the United States in Cromwell v County of Sac (1876) 94 US 351
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342

Van Hemmen on behalf of The Kabi Kabi People #3 v State of Queensland [2007] FCA 1185
Walker on behalf of The Noonukul of Minjerrabah v State of Queensland [2007] FCA 967
Webster v Lampard (1993) 177 CLR 598
Williams v Grant [2004] FCAFC 178
Wyatt v MR and RC Smith Pty Ltd [2008] WASCA 55

BETTY DALE, TIM DOUGLAS, CANE HICKS, DALLAS HICKS, WILFRED HICKS…

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Details
AGLC
Dale v Western Australia [2009] FCA 1201
Case
[2009] FCA 1201
Decision Date

CaseChat Overview and Summary

The case of Dale v Western Australia involved the State of Western Australia seeking a summary dismissal of an application for the determination of native title brought by Violet Samson and others on behalf of the Ngarluma People, focusing on the townsites of Dampier, Karratha, Wickham, and Point Samson. The State argued that the Wong-Goo-TT-OO People were estopped from asserting their claim due to findings made by Nicholson J in the earlier Daniel case, which determined that the Ngarluma People held native title in surrounding areas. The State contended that the Wong-Goo-TT-OO People could not claim to be a society existing continuously since sovereignty, and thus, their claim should be dismissed under the Federal Court Rules for lacking reasonable cause of action.

The court had to determine whether the doctrine of issue estoppel applied to prevent the Wong-Goo-TT-OO People from asserting their native title claims, and whether the registration of the claim influenced the presumption of the existence of native title rights. The court also needed to consider if the Wong-Goo-TT-OO People could present new evidence to support their claims, and whether the findings from the Daniel case applied to the townsites in question.

The court held that the Wong-Goo-TT-OO People were indeed estopped from asserting their claim due to the findings in the Daniel case, which had already extensively examined and rejected the assertion that they formed a continuous society since sovereignty. The court emphasized that the doctrine of issue estoppel required a high threshold for establishing that an issue had been conclusively determined and that it would be inappropriate to allow the Wong-Goo-TT-OO People to present new evidence or argue their case differently. Additionally, the court noted that the registration of the claim did not create a presumption of the existence of native title rights, as registration was an administrative process that did not assess the merits of the claim.

The court allowed the motion for summary dismissal and dismissed the Wong-Goo-TT-OO People's application. The court made no order as to costs.

Orders

Orders of the court

1. The motion of the State of Western Australia for summary dismissal be allowed.

2. The applicants’ application be dismissed.

3. There be no order as to costs.

Note:

Background

Background to the litigation

Since the original notice of motion was filed by the State a new application for determination of native title has been filed by Violet Samson and others on behalf of the Ngarluma People. That application is confined to the townsites of Dampier, Karratha, Wickham and Point Samson. BACKGROUND It has already been determined that the Ngarluma People hold native title in the area surrounding Wickham, Point Samson, Karratha and the areas south of the Burrup. That determination was made several years ago after very extensive proceedings over which Nicholson J presided (Daniel v State of Western Australia [2003] FCA 666) (Daniel). The Full Court upheld his Honour’s decision in Dale v Moses [2007] FCAFC 82 (Dale). The Ngarluma People support the State’s motion for dismissal. The State contends that the Wong-Goo-TT-OO claim is bound to fail because the Wong-Goo-TT-OO People are estopped from asserting that they form a society that has existed continuously since sovereignty (which in Western Australia is since 1829). On the State’s argument, an issue estoppel is raised on that point because of key ‘findings’ made by Nicholson J in Daniel in relation to the Wong-Goo-TT-OO People. (There is a debate as to whether judicial findings were actually made). The claim by the Wong-Goo-TT-OO People is over a very broad area of the Pilbara region of Western Australia and includes the townsites. It does not, however, include that area in respect of which there has been a determination in favour of the Ngarluma People. In Daniel, the Wong-Goo-TT-OO People did not pursue claims in respect of the three townsites under consideration (and neither did the Ngarluma People). So the issue is not so much geographic but rather, whether Wong-Goo-TT-OO can ever establish that it is a ‘society’ in the relevant sense. On the State’s argument, the existence of the issue estoppel in relation to the constitution of a society existing continuously since sovereignty is fatal to any Wong-Goo-TT-OO claim wherever it is brought. As a secondary argument, the State contends that it is highly implausible the Wong-Goo-TT-OO People could establish native title over the townsites when Nicholson J held in Daniel that the Ngarluma People had established native title to the area surrounding each of the three towns of Karratha, Wickham and Point Samson. Nicholson J also held that the Wong-Goo-TT-OO People did not hold native title to the area surrounding the three towns other than to the extent that they may also be, as individuals (not a society), part of the Ngarluma People. PRINCIPLES GOVERNING DISMISSAL The application by the State is made pursuant to O 20 r 4 FCR which is in the following terms:4 Stay or dismissal (proceedings commenced before 1 December 2005)(1)This rule applies to a proceeding commenced before 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:(a)no reasonable cause of action is disclosed; or(b)the proceeding or claim is frivolous or vexatious; or(c)the proceeding or claim is an abuse of the process of the Court.(2)The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.(3)The Court may receive evidence on the hearing of an application for an order under subrule (2).

Evidence

Evidence Before The Court

In my view registration does not fortify the presumption that the asserted native title rights exist, at least for the purposes of this motion. Registration is an administrative act. It involves no real assessment of the actual merits of the claim. Registration itself may be conducted on the basis of an assumption that the facts asserted in the relevant native title application are true but it does not follow that in the context of an issue estoppel challenge the Court must operate on the same presumption. If it did, there would never be a successful challenge on the basis of issue estoppel. Further, there was such registration prior to the decisions in Daniel and Dale which judgement’s plainly rebutted any presumption which may have previously existed. There is no longer any presumption. ADDITIONAL EVIDENCE Wong-Goo-TT-OO seek to read affidavit material in support of their contention that there is a proper foundation now supported by sound genealogical research to conclude that there is the requisite element of continuity as a group. The State, in particular, objects to reliance on that affidavit material. The objection is not based on the inadequacy of the material (indeed, the State contends that if the material were examined it would only support the State’s contention that it is precisely the same claim being pursued without any evidentiary support). Rather the objection is on the basis that reliance on additional ‘new’ evidence which it is said might change the position is not the correct approach to the question of whether or not an issue has previously been determined and cannot now be pursued once again against the same party. The State’s submission on this topic is correct. It would defeat the purpose of the doctrine of issue estoppel if on any occasion on which it were raised, it were open to the party opposing the issue estoppel argument to contend that it would run its case differently this time such that the outcome would possibly be different from the earlier decision. As has been emphasised, the threshold test for an issue estoppel is high. But once that threshold is crossed, it is not open to the estoppel party to start again with a different case. ALTERNATIVE ARGUMENT The State has advanced the following alternative argument. Technically, none of the findings discussed above relate specifically to Karratha, Point Samson or Wickham because these towns were excluded from the original Ngarluma/Yindjibarndi claim. However, it is submitted that these findings apply equally to the three towns in substance because the towns are surrounded by the area to which the orders apply. It is not plausible, it is said, that different orders could be made in relation to any of the three towns. The submission is supported by the fact that the holders of native title in the area surrounding the towns, the Ngarluma People, assert native title over each of the towns as well. Given two competing claims over the towns (as opposed to a single claim by two claim groups asserting overlapping rights, as was the case with Ngarluma and Yindjibarndi Peoples in relation to part of the Ngarluma/Yindjibarndi claim), it is implausible that any claim other than the Ngarluma claim to any of the three towns could succeed.

Decision

Reasons for decision

MCKERRACHER J
I would agree with senior counsel for Wong-Goo-TT-OO in relation to this aspect of the matter. Senior counsel has made it very clear that there is no claim in respect of Dampier. The concession was made in open Court on the clear understanding that it would be a binding statement in respect of these proceedings. It is unnecessary in those circumstances for any declaration. CONCLUSION I do not underestimate the exceptional caution required to exercise the power to dismiss on a summary basis. Nor do I underestimate the demanding standards required of a dismissal on the basis of issue estoppel. However, that said, I have no doubt that Wong-Goo-TT-OO are estopped in the manner asserted by the State. It follows that the State’s motion is to be allowed and Wong-Goo-TT-OO’s substantive application must be dismissed. Pursuant to s 85A NTA there will be no order as to costs.

Ratio Decidendi

Legal Principle Established

Established by: MCKERRACHER J

Although a decision may be still be final notwithstanding that it can be subject to appeal, the Wong-Goo-TT-OO have already pursued and, indeed, exhausted all avenues of appeal in relation to Daniel and the Daniel Determination. Are there Policy Considerations which Militate Against Issue Estoppel? It is doubtful whether there is room for any discretionary factor. The threshold for establishing an issue estoppel is high. The requirements are exact and have been clearly prescribed. None of those requirements appears to invoke any overriding discretionary aspect. Nevertheless, the underlying doctrine as it has been explained in the cases behind the doctrine of issue estoppel can be seen to have relevance to the present case. The Wong-Goo-TT-OO assertion that the Wong-Goo-TT-OO People form a society that has existed continuously since sovereignty has been exhaustively and extensively ventilated in previous hearings. The duration of the Daniel hearing and appeal and the extensive analysis in the respective judgments would all have been wasted if the Wong-Goo-TT-OO were permitted to progress the present claim. There is a real interest in achieving finality of litigation. It would also be an undesirable conflict if a Judge hearing future proceedings reached a different conclusion than that reached by Nicholson J on the same point in relation to the ‘society’ issue. Wong-Goo-TT-OO complains that the State is failing in its model litigant obligation by refusing to negotiate with Wong-Goo-TT-OO. This submission misconceives any statutory obligation under the NTA. There is certainly an obligation to negotiate in good faith for a period of six months in relation to future acts but there is no reason to believe that in circumstances where there is a proper foundation for a view that a claim has no basis, the State should continue to negotiate for resolution of it. That would clearly produce an impractical outcome (North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 615). Is the fact that Wong-Goo-TT-OO’s Claim has been Registered Relevant to Issue Estoppel? Wong-Goo-TT-OO contend that the fact that the claim has been registered adds support to the Wong-Goo-TT-OO position giving rise to a presumption that the claimed rights and interests exist. This presumption, it is contended, adds to the burden on behalf of the State in establishing that no reasonable cause of action is disclosed. In my view registration does not fortify the presumption that the asserted native title rights exist, at least for the purposes of this motion. Registration is an administrative act. It involves no real assessment of the actual merits of the claim. Registration itself may be conducted on the basis of an assumption that the facts asserted in the relevant native title application are true but it does not follow that in the context of an issue estoppel challenge the Court must operate on the same presumption. If it did, there would never be a successful challenge on the basis of issue estoppel. Further, there was such registration prior to the decisions in Daniel and Dale which judgement’s plainly rebutted any presumption which may have previously existed. There is no longer any presumption. ADDITIONAL EVIDENCE