Jones & Dalungbara Batchala & Ngulungbara People of Kgari v Queensland & Commonwealth
[1998] QSC 108
•29 May 1998
IN THE SUPREME COURT
OF QUEENSLAND
No. 183 of 1995
Brisbane
[Jones & Dalungbara Batchala & Ngulungbara People of Kgari v Queensland & Commonwealth]
Before Mr Justice Muir
BETWEEN:
JOHN LEE JONES Elder and others of the DALUNGBARA,
BATCHALA and NGULUNGBARA PEOPLE of KGARI
(Great Sandy Region) as Trustees by Native Customary Law
Plaintiff
AND:
THE STATE OF QUEENSLAND
First Defendant
AND:
THE COMMONWEALTH OF AUSTRALIA
Second Defendant
CATCHWORDS: PROCEDURE - stay of proceedings - relevant considerations - sufficiency of particulars - desirability of a self-executed order.
Counsel:Mr J.L. Jones, in person, for the plaintiffs
Mr R.V. Hanson Q.C. and Mr G.J. Koppenol for the first defendant
Mr J.D. McKenna for the second defendant
Solicitors: The Crown Solicitor for the first defendant
The Australian Government Solicitor for the second defendant
Hearing date: 25 May 1998
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 29 May 1998
This is an application by the State of Queensland, the first defendant, in an action commenced by writ No. 183 of 1994. The plaintiffs in the action are John Lee Jones, Elder, and others of the Dalungbara, Batchala and Ngulungbara People of Kgari (Great Sandy Region). By order of Shepherdson J made on 21 July 1997, Mr Jones was made a representative of the plaintiffs and authorised to sue on their behalf. The second defendant in the action is the Commonwealth of Australia. It supports the first defendant's application.
The application
On 3 February 1998 Dowsett J made two orders which, inter alia:
required the delivery by the plaintiffs on or before 6 April 1998 of specified and extensive particulars of allegations in the statement of claim; and
specified times for compliance with various interlocutory steps in the action;
ordered that certain matters be tried as preliminary issues.
In broad terms, the preliminary issues were whether the plaintiffs had any title or rights derived through native title in all or part of the areas, the subject of their claims and, if so, the incidents of such title and or rights.
For convenience, I will refer from now on to the order dealing with the particulars and interlocutory steps as “the order of Dowsett J” or simply “the Order”.
I should mention that a search of the file indicates that although there are draft orders signed by representatives of all parties, the formal orders of Dowsett J have yet to be taken out.
In its application the first defendant seeks orders varying the time table for performance of steps in the action set by the Order and orders that -
the plaintiffs file and serve a document or documents in compliance with orders 1.1 to 1.9 inclusive made by Dowsett J on 3 February 1998 within 14 days of the date of any order made in consequence of the application; and
in default of compliance with such order, the action be stayed.
The action
In order to fully appreciate the considerations relevant to this application, it is necessary to understand a little about the action itself.
The action was commenced by a writ of summons on 11 February 1994. In the action the plaintiffs seek declarations that -
“A.They hold Common Law Native Title to the Lands and Seas and Seabeds and the Resources thereof, described in Paragraphs 14 and 15 [of the Statement of Claim].
B.They are entitled to damages and compensation for extinguishment of Common Law Native Title where it has been extinguished within the area specified in Paragraphs 1,2,3,4,5, and 6 [of the statement of claim].
C.They are entitled to damages and compensation for wrongful extinguishment of their Common Law Native Title contrary to the Fiduciary Duty described numerous Aboriginal Protection Acts and the Racial Discrimination Act.”
The area referred to in paragraph A encompasses: Fraser Island; an area of the mainland which includes the coast of Queensland from about Noosa Heads in the south to around Urangan in the north and the seas and seabeds to three nautical miles around Lady Musgrave Island, Lady Elliot Island, up the coast from Noosa Head to a point of the coast opposite the southern tip of Fraser Island, then along the eastern coast of Fraser Island to its northern most tip, across Hervey Bay to the mainland at a point at about the mouth of the Burnett River, and then north along the coast to the mouth of Baffle Creek.
The particulars provided by the plaintiffs
The plaintiffs provided two sets of documents (“the plaintiffs' particulars”), purportedly in response to the orders of Dowsett J. The first of these documents was forwarded by Mr Jones to the Crown Solicitor under cover of a letter of 6 April 1998. It is nine pages in length and has approximately 80 pages of annexures. Essentially, the annexures are made up of three classes of documents -
(1)Copies of documents from a file relating to Susie Dow (nee Roonie). A certificate of death shows that Mrs Dow (or Lock as she later became through marriage) was born in about 1880 and died on 28 May 1940. Her father was Jack Roonie, her mother Mary Ann Roonie.
(2)a series of documents containing the heading of the action and containing two headings “ANCESTRY” and “AFFIRMATION OF ANCESTRY”. Under the heading “ANCESTRY” there appears the following -
“GARY OWENS: Born at Yidney Creek KGURI (Fraser Island) 1854 ....
JACK NOBLE: Born at Sandy Cape KGURI 1855 ...
ANNIE GALA: Born at Woongoolbver Creek 1873 ...”
MARY ANN DALUNGDALEE Born at Woongoolbver Creek KGURI ...
SUSIE ROONEY: Born at Woongoolbver Creek KGURI ... daughter of MARY ANN DALUNGDALEE (DALUNGBARA AND NGULUNGBARA)
ROGER BENNETT: ... brother of SUSIE ROONEY ...
JESSIE BLACKMAN: Born Tiaro ...”.
·Under the heading of “AFFIRMATION OF ANCESTRY” a named person states that one or more of the persons listed under the heading “ANCESTRY” are his or her “bloodline antecedants ” and that he or she is “an ELDER or Senior member ... of the NGULUNGBARA, BATCHALA and DALUNGBARA PEOPLE”. There are some 15 of these documents.
(3)An interchange of correspondence between Mr Jones and others in recent years concerning Native Title claims and Aboriginal community interests generally.
The second of the documents relied on by the plaintiffs is a two page letter of 11 May 1998. It is broken up into three sections. The first, headed “History of Ancestors held on Government Files”, discusses record keeping in relation to Aboriginals and adverts to sources of evidence open to the plaintiffs. The second, under the heading “Question of Traditional Boundaries”, refers to an agreement as to boundaries of tribal areas reached between Mr Jones, as Chairman of the Dalungbara Land Council, and members of Dambi Land Council. The third, headed “National Native Title Tribunal Claims”, states that some of the persons included as plaintiffs in the Supreme Court action are Native Title claimants under claims lodged with the National Native Title Tribunal and that -
“There are no problems with the Ngulungbara and the Dalungbara Land Councils. To date we have not determined which of the Batchala People who want to proceed with this Supreme Court action. ...
In conclusion, although a time frame was established at our February 1998 meeting, it is apparent that this will have to be more flexible.”
The plaintiffs contentions
The plaintiffs, by Mr John Jones who appeared in person, contended that particulars had been provided in compliance with the order of Dowsett J. One of his submissions was that as Shepherdson J had made a representative Order, the particulars required to be supplied need only be given in respect of those representatives and not in respect of the plaintiffs.
Extent of compliance with Paragraphs 1.1 to 1.9 inclusive of the order of Dowsett J
The submission as to the effect of the order of Shepherdson J is quite inconsistent with the clear language of the Order. It is also unsustainable in principle. Although Mr Jones has been appointed as representative of the plaintiffs, the allegations in the statement are in respect of all of the plaintiffs. It is all of the plaintiffs who maintain the action and who seek the declaratory relief and damages referred to above. The allegations in the statement of claim are directed to the status, rights and entitlements of those persons. Consequently, any particularisation of the allegations cannot be limited by reference to Mr Jones and his forebears or on account of his representative capacity.
I do not propose to identify the extent to which the plaintiffs' particulars have succeeded in satisfying the requirements of the Order. That is because it is apparent to me that the particulars-
to the extent that they respond to the requirements of the Order at all, provide only a modest part of the information required; and
provide such information as they do provide in a confusing and obscure fashion. The plaintiffs' particulars are not set out in paragraphs corresponding to paragraphs in the order. Although some of the information provided can be identified, given careful consideration, as being referable to particular requirements of the Order it is generally impossible to ascertain what parts of the Order are intended to be addressed by parts of the plaintiffs' responses.
to a considerable extent, make reference to sources of evidence or possible lines of enquiry by referring to various of publications without extracting from the publications and specifying matters which could be regarded, properly, as particulars.
The plaintiffs' particulars then do not serve the role of particulars which is, essentially, to define the issues for decision and a party's case so as to the give the other party a clear opportunity to meet the case against it, to respond to such issues and enable appropriate decisions to be made as to admissibility of evidence, payment into court and the like: Dare v Pulham (1982) 148 CLR 658 at 664. Nor, in my view, does the material provided by the plaintiffs approach substantial compliance with the Order. The Order is plain in its terms. In order to comply with it the plaintiffs must file and serve a document or documents which address each of paragraphs 1.1 to 1.9 inclusive and set out in a clear and precise manner the information required by each of those paragraphs. If the plaintiffs' response uses the same numbering system as the Order (which it ought do), there will be no difficulty in ascertaining whether there has been a response to each paragraph of the Order and the content of that response.
Orders to be made
The first defendant was not able to point to any particular circumstances of urgency such as to justify the imposition of the time limit sought in its summons. Nor, in my view, were the defendants able to point to any facts which would justify the making of a self executing order on the return date of the first application seeking compliance with an interlocutory order. c.f. Siebe Gorman & Co v Pneupac (1982) 1 All E.R. 377. Such orders are normally considered appropriate where the conduct of the party against whom they are made has been contumacious, where that party has been persistently dilatory in taking interlocutory steps or where it can be inferred that he or she will default in taking such steps. See Freeman v Rabinov [1981] VR 539. In any event, it is inappropriate to make such an order where there are likely to be difficulties in determining whether or not the condition, upon which the self executing order depends, has been fulfilled or where the order will take effect even if there has been substantial but not full, compliance. See Turner v Bulletin Newspaper Co. Pty. Ltd. (1974) 131 CLR 69 at 74 and Douglas v John Fairfax & Sons (1983) 3 NSWLR 126 at 134. This matter is obviously one of considerable complexity. Compliance with the order of Dowsett J will require a great amount of careful work and not a little expense. That is why it seemed to me to be realistic, notwithstanding Mr Jones's intimation that the plaintiffs ought be able to comply with the Order within 30 days, to allow the plaintiffs until 6 July within which to provide the required material.
It is the case, however, that the action has now been on foot for some years. The plaintiffs consented to the terms of the Order and they have been pressed by both defendants to comply with its requirements. The plaintiffs' task is a difficult and perhaps daunting one, but they have assumed it by commencing a complex piece of litigation and must be prepared to proceed with their case, with reasonable dispatch.
The defendants are entitled to have the case dealt with and it cannot be in the public interest to leave festering claims which affect rights to substantial areas of Crown land and reserves. Having regard to the generality of many of the critical allegations in the plaintiffs' statement of claim, extensive particularization is required in order to progress the case. Provision of many of the particulars ordered are essential to enable the defendants to know the case they have to meet and to define the scope of discovery.
The defendants have not succeeded in obtaining the stay of the plaintiffs' action on this application. But the plaintiffs should appreciate that they have already been granted a great deal of time within which to particularise their claims and that it will become increasingly difficult for them to obtain further indulgence from the Court.
The following orders are formulated with a view to attempting to ensure that the outstanding particulars are provided and if they are not, that any application brought as a consequence of such default is disposed of as expeditiously as possible.
I order that:-
(a)The time by which the plaintiffs are to file and serve a document or documents containing the information, matters and things specified in paragraphs 1.1 to 1.9 inclusive of the order of Dowsett J made on 3 February 1998 be extended to 5 p.m. on 6 July 1998.
(b) This application be adjourned to 9 a.m. on 13 July 1998.
(c)Until further order the time limited for compliance with paragraphs 4, 5, 6, 7, 8, 9,10,11 and 12 of the said order be extended indefinitely.
(d)Until further order the time for disclosure referred to in paragraph 2 of the two paragraph order of Dowsett J made on 3 February 1998 be extended indefinitely.
(e) The costs of and incidental to this application be reserved.
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