Gardiner v Attorney-General (No 4)
[2021] VSC 290
•21 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02090
| MARGARET GARDINER, VINCENT PETERS, ANNETTE XIBERRAS and ELIZABETH THORPE | Plaintiffs |
| v | |
| ATTORNEY-GENERAL OF THE STATE OF VICTORIA | First Defendant |
| and | |
| TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION) | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 May 2021 |
DATE OF RULING: | 21 May 2021 |
CASE MAY BE CITED AS: | Gardiner v Attorney-General (No 4) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 290 |
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PRACTICE AND PROCEDURE – Temporary stay of proceeding pending determination of related Federal Court proceeding, concerning validity of registration of indigenous land use agreement under Native Title Act 1993 (Cth) – Federal Court proceeding now concluded – Registration of indigenous land use agreement set aside – Whether proceeding should be further stayed pending reconsideration of application to register agreement – No abuse of process – Proceeding to be listed for trial – Native Title Act 1993 (Cth), ss 24CK, 203BE(5), 251A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr C Gunst QC and Ms AM Sheehan | Holding Redlich |
| For the First Defendant | Mr PG Willis SC and Ms EA Bennett | Matthew Hocking, Victorian Government Solicitor |
| For the Second Defendant | Mr R Mathews, Solicitor | First Nations Legal and Research Services |
HER HONOUR:
In this proceeding, the plaintiffs seek judicial review of a decision of the Attorney-General for the State of Victoria, under s 4 of the Traditional Owner Settlement Act 2010 (Vic), to enter into the Taungurung Recognition and Settlement Agreement (RSA). The RSA was entered into on 26 October 2018 with the Taungurung Land and Waters Council,[1] and recognises the Taungurung people as the traditional owners of the land and waters covered by the RSA. It is part of a settlement package that includes several other agreements, including the Taungurung Indigenous Land Use Agreement (Taungurung ILUA), entered into under the Native Title Act 1993 (Cth). The background to the proceeding is set out in some detail in Gardiner v Attorney-General (Gardiner No 1),[2] and the procedural history is canvassed in Gardiner v Attorney General (No 3) (Gardiner No 3).[3]
[1]Formerly named the Taungurung Clans Aboriginal Corporation.
[2][2020] VSC 224 (Gardiner No 1), [1]–[5].
[3][2020] VSC 516 (Gardiner No 3), [1]-[10].
The Taungurung ILUA was accepted for registration on the Register of Indigenous Land Use Agreements on 30 April 2020, by a delegate of the Registrar of the National Native Title Tribunal. Its registration prompted the Council to apply for parts of the plaintiffs’ originating motion to be struck out or stayed, on the basis that they were an abuse of process.[4]
[4]Second defendant’s summons filed 5 May 2020 and amended summons filed 7 July 2020.
On 28 August 2020, I stayed the proceeding until the determination of Federal Court proceeding VID 384/2020, including any appeal or further order. The Federal Court proceeding was commenced in early June 2020 by Margaret Gardiner, Gary Murray, Vincent Peters and Elizabeth Thorpe, three of whom are plaintiffs in this proceeding. They sought judicial review of the decision of the Registrar’s delegate to accept the Taungurung ILUA for registration under s 24CK(1) of the Native Title Act.
My reasons for staying this proceeding pending determination of the Federal Court proceeding were, in summary:
(a) One of the plaintiffs’ contentions in this proceeding is that the Attorney-General’s decision was beyond jurisdiction because the Taungurung were not a ‘traditional owner group’ in respect of the RSA area for the purposes of the Settlement Act. They argue that there was not a single group who could authorise, within the meaning of s 251A of the Native Title Act, an ILUA for the RSA area. I refer to this as the plaintiffs’ jurisdictional fact ground.[5]
[5]Gardiner No 3, [13]; Further amended originating motion for judicial review dated 31 March 2020, [7]-[10].
(b) The registration of the Taungurung ILUA was a complete answer to the plaintiffs’ jurisdictional fact ground.[6] It also gave the Taungurung ILUA legal effect, independent of the validity of the Attorney-General’s decision.
[6]Gardiner No 3, [50].
(c) The validity of the Registrar’s decision to accept the Taungurung ILUA for registration was not a matter over which the Supreme Court of Victoria had any jurisdiction.[7]
[7]Gardiner No 3, [29].
(d) There was such a substantial overlap between the jurisdictional fact ground in this proceeding and the issues in the Federal Court proceeding that it would be an abuse of process for those issues to be tried in both proceedings.[8] There were two reasons why I concluded that those issues were best determined in the Federal Court proceeding, and that this proceeding should be stayed until that had occurred.[9]
(e) First, I considered that the strength of jurisdictional fact ground in this proceeding would rise or fall depending on the outcome of the Federal Court proceeding, the reasons for any order made by the Federal Court, and any subsequent decision of the Registrar.[10]
(f) Second, the registration of the Taungurung ILUA had far-reaching consequences for the relief that the plaintiffs might obtain in this proceeding. While it remained on the Register, it bound everyone with actual or claimed native title rights and interests over the agreement area, including the plaintiffs.[11]
[8]Gardiner No 3, [37], [52].
[9]Gardiner No 3, [52].
[10]Gardiner No 3, [53].
[11]Gardiner No 3, [54].
The Federal Court proceeding has now concluded, with final orders made on 19 March 2021. For reasons that I will discuss shortly,[12] Mortimer J ordered that the decision of the Registrar be set aside and that the Taungurung ILUA be removed from the Register, and remitted the application for its registration to the Registrar for consideration in accordance with law. There was no appeal against those orders. As a result, the proceeding in this Court is no longer stayed.
[12]Gardiner v Taungurung Land and Waters Council [2021] FCA 80 (ILUA Reasons) and Gardiner v Taungurung Land and Waters Council (No 2) [2021] FCA 253. The ILUA Reasons are discussed at [11]-[17] below.
At the request of the plaintiffs, I listed the matter for directions on 14 May 2021. The parties were requested to confer as to the orders to be sought at that directions hearing. They were not able to agree. The plaintiffs seek orders to bring the proceeding to trial later this year, while the defendants seek a further stay until after the determination of the remitted application for registration of the Taungurung ILUA.[13]
[13]First defendant’s summons filed 28 April 2021, endorsed by the second defendant in its outline of submissions filed 8 May 2021.
For the reasons that follow, I decided not to order a further stay of the proceeding. Instead, I will list the proceeding for trial later this year.
Registration of Taungurung ILUA
On 17 December 2018, the State of Victoria applied for the registration of the Taungurung ILUA, pursuant to s 24CG(1) of the Native Title Act. As required by s 203BE(1)(b), the application was certified by First Nations Legal and Research Services, in its capacity as the relevant representative body. Section 203BE(5) sets out the preconditions for the certification of an ILUA by a representative body:
A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that:
(a)all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and
(b)all the persons so identified have authorised the making of the agreement.
Note: Section 251A deals with authority to make the agreement.
The Taungurung ILUA was registered under s 24CK of the Native Title Act, which provides:
Registration only if conditions satisfied
(1)If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.
First condition
(2) The first condition is that:
(a)no objection under section 24CI against registration of the agreement was made within the notice period; or
(b)one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or
(c)one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.
Second condition
(3)The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.
Matters to be taken into account
(4)In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:
(a)the persons making the objections mentioned in that paragraph; and
(b)the representative Aboriginal/Torres Strait Islander bodies that certified the application;
and may, but need not, take into account any other matter or thing.
The delegate of the Registrar provided detailed reasons for her conclusion that both conditions were met in relation to the Taungurung ILUA, so that it had to be registered. Critical to her conclusion was her finding, under s 24CK(2)(c), that none of the objectors had satisfied her that the requirements of s 203BE(5)(a) and (b) were not satisfied in relation to the certification of the application by the Council.
Gardiner v Taungurung Land and Waters Council
The principal reasons for judgment of Mortimer J of the Federal Court were published on 9 February 2021, as Gardiner v Taungurung Land and Waters Council (ILUA Reasons).[14] The applicants in the Federal Court proceeding identified seven grounds on which they contended that the Registrar’s delegate was wrong to accept the Taungurung ILUA for registration,[15] two of which succeeded.
[14][2021] FCA 80.
[15]Set out at [66], and discussed at [71]-[93] of the ILUA Reasons.
It is sufficient for present purposes to focus on the two grounds that were upheld: Ground 3 and Ground 5. Both grounds challenged the delegate’s conclusion that the requirements of s 203BE(5) were satisfied in relation to the certification of the application by the Council. Justice Mortimer found that the delegate had not engaged with the extensive affidavit material submitted by the applicants, and had taken too narrow an approach to the question of whether First Nations Legal had made reasonable efforts to identify all people who may hold native title in the ILUA area.
Justice Mortimer characterised Ground 3 as the ‘wrong question/wrong task’ ground. The gist of the ground was that the delegate had confined herself too narrowly in the material she considered capable of satisfying her that First Nations Legal had not made all reasonable efforts to ensure that all persons who hold or may hold native title in the area covered by the ILUA had been identified.[16] Her Honour’s reasons for upholding this ground speak for themselves:[17]
[16]As required by s 203BE(5)(a) of the Native Title Act 1993 (Cth).
[17]ILUA Reasons, [233]-[237], [241], emphasis in original.
As I have attempted to explain above, by reference to the observations of White J in Bright,[18] information and evidence about who are said to be the persons who may hold native title is capable of affecting an assessment of the reasonableness of the efforts made by a representative body to identify such people. It is not assessed for the purpose of the Registrar making any determination about who may hold native title, but it is assessed in order to gauge whether the representative body has done enough to reasonably form a view about who those people are, and reasonably to conclude they are the right people – enough to warrant certification to that effect, with all the consequences that certification brings.
Paragraph [94] of the reasons … confirms my view that the delegate adopted too narrow an approach. It is not possible to sever my findings about this from my findings about the delegate’s lack of engagement with the affidavit material: they are linked. However, the point is that the delegate simply did not engage with the details of the “extensive research” as it was put before her, in particular in the “Attachment B” paper, which was the only expert opinion before her, and indeed the only expert opinion which appeared to have been produced on the actual issues being raised by the objectors: that is, about the Taungurung and Ngurai Illum Wurrung being a distinct group which may hold distinct native title over distinct parts of the Taungurung ILUA area. That paper did not address whether the Waywurru and Dhudhuroa peoples held native title in land and waters covered by the Taungurung ILUA. That argument was addressed in submissions, but not in this research paper. The delegate did not assess for herself if the research was, as asserted, “extensive”. On its face there was a reasonable argument to be had that the research on the matters raised by the objectors was not deserving of that characterisation. Attachment B was a relatively short paper, with conclusory views expressed preferring some ethnographic and historic research, largely from secondary sources rather than Aboriginal informants, over others. None of the authors’ views had been tested, or even exposed to consideration by experts retained by others with different perspectives. Compare the circumstances in both McGlade[19] and in Bright, where there had been considerable litigation and formal inquiries.
It would ultimately be a matter for the delegate to reach her own conclusions about the value of the research paper, and what it revealed about the “efforts” of First Nations Legal in this very specific Victorian context, which is quite unlike the situation in other states, and unlike the factual circumstances of the authorities on s 24CK. The point here is she did not engage with the material at all, just as she did not engage with the affidavits. Her reasons suggest she saw such engagement as outside her task, which is incorrect.
In this kind of factual context, where there had been no native title litigation, where there was a paucity of anthropological research for the purposes of the Native Title Act carried out with living informants, or with elders from earlier generations, where there were no equivalent of formal Aboriginal Land Rights Act inquiries, and where the ethnographic record was problematic and patchy, reliance on the construction by First Nations Legal of a database, and by notifications undertaken by the group with an interest in one side of the possible outcomes (the [Council]) was too narrow, and was an insufficient consideration. These criticisms by the objectors could not be dismissed by the delegate, as they were, as no part of her task because she was not to decide herself who may hold native title. What her reasons suggest she failed to appreciate, with respect, is that all these matters were quite capable of going to the reasonableness of the effects made by First Nations Legal. Put shortly, in such a situation it would have been open to the delegate to have taken the view that First Nations Legal needed to do a great deal more than it had done, and needed to undertake some substantive, deep and longer term work about whether at sovereignty, the Ngurai [Illum] Wurrung were likely to have been a distinct native title holding group from their neighbours the Taungurung, especially given … the apparently overarching agreed position that the “society” which existed at sovereignty was that of the Kulin nation, and it was the normative rules which together comprised the traditional law and custom of the Kulin Nation which were the rules determining how land was held, and how rights and interests in it were acquired, and passed on. That is not to say the delegate would have been bound to reach such a conclusion, but these were the kinds of (very Victorian specific) matters she needed to engage with, and she did not.
The delegate’s self-censorship about these matters is what appears to have driven her to see the proxy votes as irrelevant. While it was not said in this proceeding that First Nations Legal should have taken steps to ensure the proxy votes were given equal voting status at the authorisation meeting and the delegate erred in not deciding they should have, what was said – with some force in my opinion – is that the (unchallenged) existence of a very large number of proxy votes indicated the numbers of people who may be people who may hold native title, and not necessarily the “native title” said to be held by the Taungurung group. The existence of the proxies was capable of establishing who may not have been included in the authorisation process, and may not have been identified by First Nations Legal.
…
[The] delegate appears to have considered the proxy votes only in relation to the second limb of s 203BE(5) – whether all persons so identified authorised the making of the ILUA. With respect, the rationality of this reasoning is difficult to see. The delegate finds (or recognises) that the 186 proxy voters “did not support the authorisation of the ILUA”. She infers they “chose” not to [attend], without any apparent basis for such an opinion, and without grappling with the content of the affidavit material … The delegate then appears to accept that the identity of the proxy voters was not known, however again it is difficult to see what probative evidence could have supported this finding. Ms Thorpe’s affidavit, for example, annexes a list of the proxy voters by name, who they are descended from and to whom they gave their proxy. That information was before the delegate. The same absence of a probative basis attaches to the delegate’s finding that whether the people concerned may hold native title was not known. The same list provided at least some basis to infer they did, and certainly that they believed they did. The fact that there were 186 people whose descent links to apical ancestors for the ILUA area had not been investigated by First Nations Legal was simply not addressed by the delegate. First Nations Legal’s somewhat disingenuous submissions that the objectors had done part of its identification work for it was also not addressed.
[18]Bright v Northern Land Council [2018] FCA 752.
[19]McGlade v Native Title Registrar [2017] FCAFC 10; McGlade v South West Aboriginal Land & Sea Corporation (No 2) [2019] FCAFC 238.
Ground 5 concerned the delegate’s approach to the objectors’ material placed before her. It was to the effect that the delegate had failed to engage with the applicants’ affidavit evidence, which was relevant to whether the conditions for certification in s 203BE(5) had been satisfied.
Justice Mortimer rejected the respondents’ characterisation of these affidavits as information about who held native title in the ILUA area, that did not relate to either limb of s 203BE(5). She held that there was no ‘rigid line’ between material about who may hold native title and the Registrar’s task under s 24CK:[20]
… The legislative scheme is not designed to facilitate the identification of the wrong people. It is designed to facilitate the identification of the people who hold, or may hold, “native title” as that concept is defined in the Native Title Act. It is not concerned with language groups as language groups, nor people with cultural or historical associations. It is concerned with holders of native title (where there is a determination), and those who can reasonably be described as likely holders of native title (where there is not).
Therefore, when the Registrar or her delegate is considering objections under s 24CK, and determining whether she or he is satisfied the objectors have established a representative body did not make reasonable efforts to identify those who may hold native title in the ILUA area, and did not ensure it was those people who authorised the ILUA, it may well be part of the Registrar’s or delegate’s task to examine and assess the material which formed the basis for the efforts undertaken by the representative body; as well as examining material which the objectors contend should have informed those efforts.
[The] scope of the task for the representative body (and therefore the scope of the task for the Registrar or delegate) will always depend on the factual situation existing for the conclusion of the ILUA. There may be legal certainty about the native title holders because there is a determination of native title (and perhaps, as in Bright, a rejection of other claims for native title). Or, as in the case of the Taungurung ILUA, there may not have even been a native title application, and therefore no material at all prepared for public scrutiny about claims by a group to hold native title. There may be, as in the case of the Taungurung ILUA, a paucity of research directed at the stringent tests and the “at sovereignty” position required for native title, even if there is some research directed at the less stringent tests for the existence of a “traditional owner group” under the TOS Act. All these factual matters will affect, fundamentally, the nature of the task to be performed by the delegate.
[20]ILUA Reasons, [256]-[258].
Justice Mortimer found that the affidavits were centrally relevant to the delegate’s task, and that the delegate had not engaged with them as she was required to do in order to determine whether the objectors had discharged the onus cast on them by s 24CK(2).[21] Her Honour set out a detailed analysis of how the delegate’s failure to actively engage with the affidavit material relied on by the applicants meant that substantial and relevant questions raised by that material were not considered,[22] concluding:[23]
The efforts of a representative body to identify all persons who may hold native title are unlikely properly to be described as “reasonable” efforts if they are inaccurate, incomplete, based on unsound research or if they represent an immovable position adopted by a representative body in the face of information which is credible and objectively worthy of further investigation, where detailed research and investigation has not otherwise occurred. The legislative scheme about ILUAs would fail miserably if that were the case. While the Court certainly makes no finding that those descriptions apply to the work of First Nations Legal in relation to the Taungurung ILUA, the point is that the objectors had presented detailed and credible sworn evidence of matters which went to both limbs of s 203BE, and with which the delegate did not actively engage, in a context where the only responsive material was at the level of generalised submissions (save for the one research paper given to the delegate).
[21]ILUA Reasons, [259]-[262].
[22]ILUA Reasons, [263]-[295].
[23]ILUA Reasons, [294].
The defects in the decision to accept the Taungurung ILUA for registration identified in the ILUA Reasons were not trivial or technical in nature. Justice Mortimer found that there was a substantial failure by the Registrar’s delegate to perform the statutory task under s 24CK of the Native Title Act. The registration has been set aside, the Taungurung ILUA removed from the Register, and the application for its registration remitted to the Registrar for consideration in accordance with the law. Consideration of the application will necessarily involve active engagement with the matters raised in the applicants’ affidavits by the State, the Council, First Nations Legal, and the Registrar.
Should there be a further stay of this proceeding?
By summons filed 28 April 2021, the Attorney-General sought an order that the proceeding be stayed until after the determination of the application for registration of the Taungurung ILUA. Her application was supported by the Council, and opposed by the plaintiffs.
The Attorney-General sought a stay pursuant to r 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), on the basis that the proceeding is an abuse of the process of the Court. She relied on the principles summarised in Gardiner No 3,[24] in particular that the evaluation of what amounts to an abuse of process must have, at its core, ‘a concern for the systemic protection of the integrity of the court within an integrated system of justice’.[25]
[24]Gardiner No 3, [36]-[37].
[25]Strickland (a Pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, [249] (Edelman J).
The Attorney-General argued that the factors that militated in favour of staying the proceeding in August 2020 continue to operate. In particular:[26]
[26]First defendant’s outline of submissions in support of its application for a stay dated 7 May 2021, [14].
(a) It remains the case that the strength of the ‘jurisdictional fact’ ground will rise or fall, depending on the outcome of [the] registration decision. The Native Title Registrar, performing her statutory function, will now engage with the issues posed by this question. The degree of overlap with the present case remains, and to the extent that the Registrar may now engage more closely with the basis on which First Nations certified the ILUA, the overlap is heightened.
(b) The registration of the ILUA continues to have consequences for the relief that the Plaintiffs might obtain in the Supreme Court proceedings. A timetable for the submission of material has been set by the National Native Title Tribunal, and its consideration may be expected in the short term. While that process runs its course, it is appropriate that this proceeding remain stayed.
(c) Although the Supreme Court proceeding was commenced first, that is not determinative. The proceedings before the Native Title Registrar should be viewed as a continuation of the Federal Court proceedings and the issues ventilated by the Plaintiffs in that process.
She submitted that the simultaneous preparation and consideration of evidence covering the same ground, in both this proceeding and before the Registrar, would be contrary to the interests of justice, involve substantial cost to no clear end, and occasion confusion and difficulty. The potential for inconsistent findings of fact was emphasised in both written and oral submissions.
Asked about the timetable for the submission of material set by the Registrar, senior counsel for the Attorney-General clarified that the Registrar had set 28 May 2021 as a date for the State’s submission in support of the application, and had recently agreed to extend that deadline to 18 June 2021. Beyond that, there was no timetable for the remaining steps in the process, and no certainty as to what those steps would be. Based on the amount of material to be reviewed and assembled, the number of objectors, and the requirements of procedural fairness, it was reasonable to estimate that the process could take the rest of the year.
The Council supported the Attorney-General’s application. The Council said that it sought a speedy, efficient and orderly disposition of the proceeding. It reiterated submissions made in March 2020 that the lingering uncertainty over the RSA was hindering the ability of the Taungurung people to get on with the business of healing their community, strengthening their culture and connection to country, and building their businesses and a strong and sustainable future for their nation.
The Council’s position was that the most efficient and orderly way forward would be to stay this proceeding until after determination of the application for registration of the Taungurung ILUA. The Council was not able to say how long that process might take. It did not see that it was practicable or appropriate to have the two processes running simultaneously, given the significant amount of work required for both. It also emphasised the potential for the two processes to have inconsistent outcomes.
The plaintiffs contended that the proceeding should be brought on for trial at the earliest opportunity. It is a judicial review proceeding, commenced more than two years ago, in respect of a decision made by the Attorney-General in October 2018, which should be heard sooner rather than later. They argued that the circumstances that led to the stay ordered in August 2020 no longer prevailed – the applicants succeeded in the Federal Court proceeding, and the Taungurung ILUA has been removed from the Register.
The plaintiffs submitted that there was no basis to order a further stay. To do so would put off, for another year or more, this entire proceeding. The previous registration process took 16 months, and the current process was likely to take a similar time. They argued that common sense and the interests of justice strongly favoured this Court hearing and determining this proceeding forthwith, before the registration process began again. They also relied on the principle that, having properly invoked the Court’s supervisory jurisdiction over Victorian decision-makers, they had a prima facie right to have that jurisdiction exercised.[27]
[27]Jago v District Court of NSW (1989) 168 CLR 23, 76 (Gaudron J).
Consideration
The plaintiffs have properly invoked the Court’s judicial review jurisdiction, in relation to a significant decision made by the Attorney-General, on behalf of the State of Victoria, to enter into the RSA. The validity of that decision is at issue in this proceeding. Absent grounds for a stay, the plaintiffs are entitled to insist on the exercise of the Court’s supervisory jurisdiction.
There is much to be said for determining the validity of the Attorney-General’s decision to enter into the RSA, including the Taungurung ILUA, before any decision is made on the application to register the ILUA. It is logical to resolve the validity of that foundational decision, before the issues in this proceeding are again overtaken by decisions made under the Native Title Act, over which this Court does not exercise supervisory jurisdiction.
I do not accept that there would be any abuse of process in hearing and determining this proceeding while the application for registration of the Taungurung ILUA is before the Registrar. That was the position when the proceeding was commenced in May 2019, and for almost a year after that. It was not until the ILUA was accepted for registration on 30 April 2020 that the Council sought to have the proceeding stayed as an abuse of process. Even then, it was the overlap between this proceeding and the pending Federal Court proceeding, and not the fact that the ILUA had been registered, that persuaded me that a temporary stay should be ordered.
In her written submissions, the Attorney-General sought to characterise the remitted application for registration as a continuation of the Federal Court proceeding.[28] At the hearing of the summons, however, she accepted that the process to be undertaken by the Registrar is an administrative process and not a judicial one. That is plainly correct.
[28]See [20] above.
Now that the Federal Court proceeding has concluded, there is no longer any overlap between proceedings concerning the same subject matter. In particular, there is no present danger of inconsistent findings by different courts as to whether the Taungurung could authorise, within the meaning of s 251A of the Native Title Act, an ILUA that is capable of being registered under s 24CK.[29] In that circumstance, bringing this proceeding to trial poses no risk to ‘the integrity of the court within an integrated system of justice’.[30] To the contrary, it will serve the public interest in ‘the timely and efficient administration of civil justice’.[31]
[29]The basis on which the Attorney-General concluded that they were a ‘traditional owner group’ in respect of the RSA area for the purposes of the Traditional Owner Settlement Act 2010 (Vic).
[30]Strickland, [249] (Edelman J), cited in Gardiner No 3, [37].
[31]UBS AG v Tyne {2018) 265 CLR 77, [72] (Gageler J), also cited in Gardiner No 3, [37]. See also Civil Procedure Act 2010 (Vic), ss 7, 8.
It is now more than two years since the proceeding was commenced, and time is still passing. I place considerable weight on the evidence that the plaintiffs are between 60 and 73 years of age, and that two of them currently suffer serious health issues. In those circumstances, it would be unjust to delay the resolution of this proceeding until some indeterminate future time when the ILUA registration process is completed.
I also place weight on the evidence of the Council’s chief executive officer, Matthew Burns, in an affidavit affirmed in February 2020, about the harm caused to its members by delay in bringing the proceeding to finality.[32] This remains a powerful reason to hear and determine the proceeding as soon as possible.[33]
[32]Gardiner v Attorney-General (No 2) [2020] VSC 252, [40] (Gardiner No 2).
[33]Gardiner No 2, [41].
I accept that it may be inconvenient, even burdensome, for the Council and the State to prepare this matter for trial while also progressing the application for registration of the ILUA. However, that inconvenience does not render this proceeding an abuse of process, or provide a basis on which I could or would stay the proceeding.
In addition, the Council and the State can control their respective workloads, so that priority is given to this proceeding. It is open to them to agree that the State’s application to register the Taungurung ILUA will be suspended until the determination of this proceeding.[34] It would also be open to the Registrar to put the application on hold, until the validity of the Attorney-General’s decision to enter into the RSA, which includes the Taungurung ILUA, has been resolved in this proceeding.
[34]Taungurung ILUA, cll 7, 19.
Disposition
I will make orders dismissing the Attorney-General’s summons filed 28 April 2021, listing the proceeding for trial later this year, and referring it for judicial mediation. I will also make pre-trial directions in similar form to those ordered in March 2020.
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