Jones & Ors v State of Queensland & Commonwealth of Australia - [1998] QSC 238

IN THE SUPREME COURT
OF QUEENSLAND

No. 183 of 1994
Brisbane

[Jones & Ors v State of Queensland & Commonwealth of Australia]
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
Plaintiffs
AND:

THE STATE OF QUEENSLAND
First Defendant
AND:

THE COMMONWEALTH OF AUSTRALIA
Second Defendant

REASONS FOR JUDGMENT - MUIR J
Judgment delivered 3 November 1998

CATCHWORDS: PROCEDURE - strike out application - relevant considerations - sufficiency of particulars - requirements of a native title right

Counsel:Mr J.L. Jones, in person, for the plaintiffs
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: 15 October 1998

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 3 November 1998

The defendants in the action apply to have the plaintiffs' further amended statement of claim struck out under O. 22 r. 31 and/or 32 of the Rules of the Supreme Court and/or, in the court's inherent jurisdiction on the grounds that the action is frivolous or vexatious and/or that the pleading tends to prejudice or delay the fair trial of the action. The first defendant also seeks the same relief under O. 23 r. 1 of the Rules of the Supreme Court or under the Court's inherent jurisdiction on the grounds that the plaintiffs have failed to comply with orders of Dowsett J made on 3 February 1998 and orders made by me on 29 May 1998, 16 June 1998 and 18 September 1998.
The action
The action was commenced by a writ of summons on 11 February 1994. In it 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.
Previous interlocutory steps
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;
·specified times for compliance with various interlocutory steps in the action; and
·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 to the order dealing with the particulars and interlocutory steps as “the particulars order”.
The first defendant, in an application heard on 25 May 1998, sought orders varying the timetable for performance of steps in the action set by the particulars order and orders that -
·the plaintiffs file and serve a document or documents in compliance with paras. 1.1 to 1.9 inclusive of the particulars order 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.
On 29 May 1998 I -
·extended the time within which the plaintiffs were required to comply with the requirements of paras. 1.1 to 1.9 inclusive of the particulars order to 5 p.m. on 6 July 1998;
·adjourned the application to 13 July 1998;
·declined to make any self-executing order.
On 8 and 10 July 1998 the first and second defendants respectively filed the notices of motion now before me. A hearing on the notices of motion took place on 23 July 1998. In reasons for judgment delivered on 18 September 1998 I observed -
“As matters stand, the particulars, apart from failing to constitute compliance with the [particulars] order, do not seem to me to be sufficient to make out an arguable case for a native title interest within the principles set out earlier. However, I do not think it necessary or desirable to decide that question now. The plaintiffs appear to me to have made a serious attempt at compliance with the order and I am not confident that they will be unable to provide sufficient particulars to support an arguable case. In the circumstances, rather than attempt on the material before me to determine whether the allegations in the statement of claim, in the light of the particulars provided, are “manifestly groundless” or so obviously untenable that (they) cannot possibly succeed,” I consider that the most appropriate course is to give the plaintiffs yet a further opportunity to provide material in compliance with the [particulars] order.”
I extended the time by which the plaintiffs were to comply with paras. 1.1, 1.5, 1.7(b)(c) and (d) of the particulars order to 2 October 1998 and adjourned the applications.
The focus of the first defendant's submission before me on 23 July 1998 was alleged lack of compliance with para. 1.5 of the particulars order. That paragraph remains the focus of the second defendant on this application. In my reasons of 18 September 1998 I observed in respect of the particulars thus far provided -
“It is important to note that paragraph 1.5 is prefaced with the words “An outline of the facts to be relied upon by the Plaintiffs to prove a contemporary connection with the title claim area”.
Sub-paragraph (a) deals with “possession, occupation, use and enjoyment of the area”. The particulars provided in respect of that sub-paragraph state merely that some members of the Dalungbara, Batchala and Ngulungbara people have always lived within the boundaries of “the traditional lands”, some have worked in the sugar industry and the timber industry on Fraser Island and that some identified “family groups” now reside at specified addresses in the subject area. There is thus little in the way of relevant “facts” as to possession, occupation, use and enjoyment of the area, as opposed to broad generalisations.
Sub-paragraph (b) makes the assertion that “... customs (such) as adoption was commonly practised. It then gives an instance of one tribal marriage. This is, at best, and if proved, faint evidence of observance of traditional laws and customs.
Sub-paragraph (c) does not actually state any material fact to do with “Dreaming tracks, stories and ceremonies or other sites of special significance ...”. It refers only to “sites” and then makes the assertion that “the most notable Aboriginal cultural sites are listed in the management plan of Fraser Island and the Great Sandy Region”. It is not the provision of a particular to state that information may be obtained from a source other than the particulars provided. Nor does the material provided serve as “an outline of the facts to be relined on” in the relevant respect. ”
The amended particulars in response to paragraph 1.5 of the Particulars Order
On 2 October 1998 the plaintiffs filed amended particulars to paras. 1.5 and 1.7. Paragraph 1.5 of the Particulars Order provides -
“1.5An outline of the facts to be relied upon by the Plaintiffs to prove a contemporary connection with the title claim area (“area”) including”
(a)the Plaintiff group's possession, occupation, use and enjoyment of the area;
(b)the acknowledgment and observance of the traditional laws and customs referred to in Order 1.4 above; and
(c)any Dreaming tracks, stories and ceremonies or other sites of special significance of the Plaintiff group concerning the area, including, but not limited to those sites that have been listed, recorded or notified under the Cultural Record (Landscapes Queensland and QueenslandEstate) Act 1987 (Qld).”
A great deal of time and effort went into the compilation of the particulars. Unfortunately, the work was misdirected. For the most part, the further particulars consist of a reference to some 17 publications, some of which are quite bulky. In reasons for judgment delivered on 29 May 1998 I directed the plaintiffs' attention to the need to go beyond provision of “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”. In relation to some of the 17 documents the plaintiffs have provided a brief reference to, what I understand to be, the topic or subject matter to be relied on in the publication.
The particulars, before referring to the publications, explain that the plaintiffs' action “is a common law action”, and that -
“The irrefutable evidence of the plaintiffs genealogy shows that we are the bloodline descendants of our ancestors who were in occupation and possession of our traditional lands and seas at the time of the Declaration of British Sovereignty and particularly at the time of white incursion of 1848 in the Wide Bay Region.”
Most of the documents have little or nothing to do with the facts proving or tending to prove a contemporary connection between the plaintiffs and the title claim area.
I now turn to consider the particulars provided specifically in relation to para.1.5. The way in which the particulars are sought to be provided, in this case, is by incorporation of parts of documents 1, 2, 3, 5 and 14.
Document 1 relevantly contains a paper prepared from a recording of conversations by a Dr Winterbotham, the founder of the Anthropology Museum at Queensland University, and an Aboriginal by the name of Gaiarbau. Gaiarbau was over 80 years of age at the time Dr Winterbotham conducted his interviews. He was said to be the last of the Jinibara people who inhabited an area just north of Brisbane. The part of the document relied on is p. 26 which contains a map of an area of south eastern Queensland on which Dr Winterbotham, with the aid of Gaiarbau, prepared a map of tribal areas. The map shows the tribal boundaries of the three tribes which inhabited Fraser Island, the Ngulungbara, the Batchala and Dalungbara.
Document 2, Occasional Papers and Anthropology No. 8, is relied on for the second page of a paper by Raymond Evans and Joan Walker, These Strangers, Where are They Going? Aboriginal-European relations in the Fraser Island and Wide Bay Region 1770-1905. That page does not appear to refer to any matters or events in this century. Later parts of the publication chronicle the tragic history of the indigenous inhabitants of Fraser Island. A brief summary of Part 4, Regrettable Reserve Fraser Island as at Closed Institution 1897-1905 records a history of the shipping of indigenous persons, originating from Fraser Island, from Maryborough to a reserve on Fraser Island in 1897. Other Aboriginals on the Island moved to the reserve or “Aboriginal Station” as it was called. Aboriginals from other parts of Queensland were subsequently transported to the reserve in 1904. 117 members of the reserve were transported to Yarrabah and “those who remained of the original Fraser Island people would be left to their own devices at the derelict site”. It is recorded that in 1907 only about 20 of the original Fraser Island people “from the 2000 or so who originally inhabited the Island now remained”.
Aboriginal Pathways in South East Queensland and the Richmond River by G.J. Steele is document 3. The notation under that document heading is “Descriptions and maps throughout. The evidence of Socio - cultural sites on Fraser Island”.
The document exhibited contained only chapters 12 to 20 inclusive of the publication. The chapter on Fraser Island was of an historical and archeological nature. I can discern no relevant connection between its contents and the particulars required by paragraph 1.5(a) of the particulars order.
Document 5, Fraser Island Aboriginal Resources and Settlement Patterns, is a thesis submitted by Jeannie Devitt for a Bachelor of Arts Degree with Honours in Anthropology at the University of Queensland in 1979. The parts of the document relied on are “p.36, 37 and 38. Campsites p. 28, campsites winter p. 24, campsites summer p. 25 and p. 34, 35. Documented crossing points from Fraser Island to mainland, Roger Bennett used p. 28”.
It is asserted on p. 8 of the publication-
“Despite claims to the contrary, Fraser Islanders have been associated with the island from the time of the mission closure in 1905 to the present. Some of the Aboriginals managed to evade removal to other centres, and spent their time on and near the island. (Davidson & Nicholls 1935, Owens 1975, Jarvis 1975, Sinclair 1975, Petrie 1978: pers. comm.) Izaac Owens, Olga Miller and others (Sinclair 1975: 2716) being the descendants of the Fraser Island Aboriginals, draw their information from the oral traditions which have remained with them over time. These people represent the most recent sources consulted.”
On p. 16 reference is made to -
“... the compulsory removal of most of the islanders from their homeland (in 1904), and their subsequent dispersal between the reserves of Yarrabah, Durundur and Fitzroy Island (Evans & Walker 1977: 90).”
None of the pages relied on by the plaintiffs provide any reference to contemporaneous use or occupation.
Document 14, Publications and papers of Aboriginal Lifeways along Cooloola Coast South East Queensland, is a paper by Ian McNiven published in Queensland Archeological Research Volume 9 1992. The paper, as its title suggests, contains no reference to matters which might be thought contemporary.
I turn now to para. 1.5(b) which relates to the acknowledgement and observance of the traditional laws and customs referred to in para. 1.4 of the particulars order.
Paragraph 1.4 of the particulars order provides -
“A description of the traditional laws and customs under which each of the rights and interests referred in order 1.2 above are possessed.”
In order to understand the requirements of para. 1.5(b) it is thus necessary to have regard also to the contents of para. 1.2 -
“1.2 A list of each of the rights and interests which it is claimed are title rights and interests.”
The particulars provided in response to that paragraph are -
“Against the whole world, the Dalungbara, Batchala and Ngulungbara were in possession and occupation and enjoyed the use of all resources of their lands and seas, as their ancestors did prior the (sic) the declaration of British Sovereignty in 1788 and prior to the incursion of European settlement in 1848, during that period and following that period to the present time, wherein particular our people have continually used the resources and products of our lands and seas.”
The particulars of the “traditional laws and customs” provided in response to para. 1.4 of the particulars order extend over four pages of single spaced type. A considerable part of that material is of a narrative nature or is argumentative. However, the following particulars can be extracted from para. 1.4 of the plaintiffs' response.
“The authority in administration of land and sea rights is vested in our land councils”.The land councils of the three people -
“are made up of the eldest and senior male of each family group with other young men allowed to listen and learn according to our customary law ...”
“The women have their own councils attending to women's business.”
“Women can inherit land and fishing rights subject to the authority of the land council.”
“Disputes are settled by the land council.”
“The land and sea laws.
(1) Permission must be sought to cross over our land.
(2) Permission must be sought to use the resources of our lands and sea.
(3) Permission must be sought to live on our lands.
Disputes are settled by the land council.”
“Our Dalungbara people enjoy the right to dive for or fish for the Nautilus, which is made into Pendant, known as the Dalung.”
“... when a person died and laid out for three days, the few fires was kept going to keep them warm before ascending to the heavens and of course to keep any spirits of any bad person from coming back to cause mischief.”
“The eating of parts of the deceased to ‘keep’ some of their Spirit.”
A demonstration of the plaintiffs' “maritime culture” was said to have taken place when Mr Jones, on visiting the place where a replica of the “Endeavour” is kept, presented the master with a dalung “as he is the ‘head man’. I, myself, am a master mariner, having owned and operated my own charter vessels, working out of the port of Cairns”. The particulars required by para. 1.5(b) were provided by incorporation of documents 1, 6, 9, 11, 12, 13, 15, 16, 17 and 18. The plaintiffs have not sought to identify any discrete parts of this voluminous material as the particulars or the references from which the particulars are to be extracted. I can find scant reference in this body of material to the topic of contemporary acknowledgement and observance of traditional laws and customs. Some of the material contains assertions contrary to the plaintiffs' case. For example, document 6 is a History of Fraser Island by Fred Williams published in 1982. It credits the following statement to Dr P.K. Lauer, Curator of the Anthropology Museum at the University of Queensland -
“As an anthropologist I have come to know the island intimately. Its Aboriginal history is evident everywhere either in the form or archeological remains, or in the minds of living Fraser Islanders. None live any longer on the island, they have by no means abandoned it, but retain much knowledge about it.”
Document 13 contains submissions made to the Commission of inquiry into the conservation management and use of Fraser Island and the Great Sandy Region presented by the Department of Family Services and Aboriginal and Islander Affairs. The submission is in two parts. One is a submission by the descendants of the Butchulla people resident at Yarrabah and in the Cairns region. The other is a submission by the Division of Aboriginal and Islander Affairs on behalf of the descendants of the Butchulla now residing elsewhere in Queensland. The first submission states inter alia -
“The Butchulla people, like the rest of the Aboriginal population in Queensland have been alienated from their land. They have been dispossessed. Their sites have been desecrated and their traditions devalued by their dominant society. Despite this, the existence of the Butchulla people today bears testimony to their resilience and bonding with the land. This bonding is evidenced by the distress and concern expressed about Fraser Island by the descendants who have never been to the island. ...
The descendants have been alienated from their land and hold new hope that these injustices will not continue under the new Labor government.”
Part 2 of the submission asserted -
“From divisional records thirty-eight people, not covered by submissions before the Commission, who have a potential interest in Fraser Island or Wide Bay have been identified. These people were alive in 1936 and most had children. The location of these people and their descendants is being established, but contact has to be made with them and they are widely scattered over Queensland.”
The plaintiffs' response to para. 1.5(c) of the particulars order commences -
“Cultural Sites, Dora circle (sacred sites) and ceremonies are listed below.”
There are then listed documents 1, 2, 3, 5, 11, 12, 13, , 17, 20 and 17 again, with the following brief explanations under the description of each document, apart from document 1.
2“Dr. Lauer shows mapped many archaeological sites on Fraser Island. On many occasions he was accompanied by our local aborigines.”
3“A large number of sacred sites and boora (dora) rings are shown.”
5“Sacred and camp sites listed throughout the document.”
11“1.03 Aboriginal Interests list Heritage sites.”
12“Harry Aldridge gives a comprehensive description of our ceremonial initiations, language and the complex kinship.”
13“Lists camp sites and Bora rings.”
“Shows archaeological sites and age”
17“These rock fish traps and middens in Cooloola dated 5,500BC. Our coastal people was and still are a maritime people.”
20“Include information on our living culture on foods and medicine. Dr. Peter James, world noted earth scientist, heads the environment study.”
17“p 19-28 of THE PLAINTIFF GROUP 1.1 are letters by Edward F. Armitage J.P. who was acknowledged Bunda, together with Harry Aldridge at the turn of the century.”

On p. 7 of the further particulars reference is made to a corroboree which describes the passing of the Endeavour. On p. 8 it is said, “On special occasions I have performed this song with the appropriate tribal markings.” It is then asserted -
“Dalung means nautilus shell. DALUNGBARA, people of the nautalus (sic) shell signifies our heriditary (sic) rights to dive for the nautilus, fashon (sic) them into Dalung, a pendant which indicates the wearer is a Maningburum, a headman. I explained this custom aboard the replica of the “Endeavour” when I presented a Dalung to the Captain as he is the ‘headman’. May and Lambert McBride accompanied me on this occasion 4 October 1995 on the day of departure of the Endeavour from the Port of Brisbane. The maritime history of our people listed above clearly shows that we have always used the resources of our traditional seas, our ancestors in the past and now.
Barry Robe one of the NGULUNGBARA Plaintiffs, a descendant of Annie Gala sister of Jack Noble, was charged under the Fisheries Act for illegally taking a turtle in 1990. The Magistrate dismissed the charge on the grounds that he is a Native of the area and was following his customary right in taking a turtle.”
As with the response to para. 1.5(b), the publications relied on make scant reference to facts which might tend to show a relevant contemporary connection. The only contemporary matters which I could identify were: the performance of the song by Mr Jones whilst decorated with traditional tribal markings; the Endeavour incident and the acquittal of Barry Robe on a charge of illegally taking a turtle. Mr Robe is identified as one of the plaintiffs in the particulars provided in response to para. 1.1 of the particulars order.
These particulars, however charitably or generously one might regard them, do not approach what needs to be established by the plaintiffs in order to ground a native title claim by persons allegedly belonging to three tribal groups in respect of a large tract of Eastern Queensland. At best, they show a few isolated incidents in which acts have been done by individuals which might be referable to traditional laws or customs. They are hardly indicative of the continued observance of traditional laws and customs by the plaintiffs as a group or as members of three separate tribes.
The amended particulars provided in response to paragraph 1.7 of the particulars order
Paragraph 1.7 of the particulars order provides -
“An outline of the facts to be relied upon by the plaintiffs to prove an historical connection with the area, including:
(a)the possession, occupation, use and enjoyment of the area by Aboriginal persons at the time of British sovereignty;
(b)the biological descent (if any) of the members of the plaintiff group from the Aboriginal persons referred to in order 1.7(a) above;
(c)when and how the plaintiff group in each relevant sub-group and their predecessor, acquired the right to speak for the area; and
(d)if the plaintiff group or any relevant sub-group acquired their right to speak to the area from another Aboriginal group at the time after British sovereignty, the identity of that other Aboriginal group and the traditional laws and customs by which the right to speak for the area was acquired.”
1.7 (a) is answered in the amended particulars, in substance, by listing documents 1 to 19 inclusive and by providing some brief commentary of marginal relevance in respect of documents 2 and 19.
The response to 1.7(b) is to incorporate “certified documents and archival material tendered in 1.1 THE PLAINTIFF GROUP”. There is thus a far from precise response to the requirements of para. (b).
The response to para. 1.7(c) is -
“The plaintiff group has inherited their rights as to ownership of their designated tribal lands and seas by right or occupation and possession by their ancestors who held their land and seas against all the world, including neighbouring Aborigines according to their traditions, laws and customs listed and described in the twenty attached historical documents.”
The response to para. 1.7(d) is -
“(d)The Plaintiff Group inherited their rights to their traditional lands and seas from their bloodline ancestors who were in occupation and possession of their traditional lands and seas at the time of British Sovereignty Declaration and at the time when Australia declared Sovereignty over the offshore coastal seas in 1973.”
A curiosity of the particulars under 1.7 and other paragraphs is that, although the pleadings allege the existence of three separate tribes having distinct tribal boundaries, no attempt has been made to particularise by reference to tribal boundaries or the existence of separate tribal groups and rights. The particulars treat the tribes as one homogenous entity.
The amended particulars provided in response to paragraph 1.1 of the particulars order
The plaintiffs have clearly put a great deal of work into the further particulars required by para. 1.1 of the particulars order. In my view, although there are difficulties with the particulars provided, were the defendants' complaints to relate to that paragraph only, the appropriate course would be to strike out relevant parts of the particulars and require their supplementation or clarification.
If the particulars are to be accepted at face value, the persons on behalf of whom the title claim is made (“the plaintiff group”) consists only of “elders of the Dalungbara, Batchala and Ngulungbara people who are signatories to the affirmation of ancestry documents, who are currently associated with this action”. Those persons are then listed under the separate tribal headings. There are eight persons listed under Ngulungbara, five under Batchala and six under Dalungbara. Of these persons four reside at or about Hervey Bay, none reside on Fraser Island and ten were born at places distant from Fraser Island and/or Hervey Bay.
Paragraph 1.1(b) asserts -
“The names of the plaintiff group is listed under the Ngulungbara, the Batchala and Dalungbara. These represent the family groups listed in the confidential registry file. The names listed from Palm Island and Yarrabah Cairns have yet to be researched as to which tribal group they belong.”
The “confidential registry” does not seem to list any family groups. Also, other comments in the particulars suggest that the plaintiffs regard the persons who are plaintiffs in the action as being more numerous than the 22 persons particularised. The “computer lists” also suggest that no genealogy has been provided for all the plaintiffs as required by para. 1(d)(v).
Identified defects in the plaintiffs' particulars
It will be apparent from the foregoing account that the plaintiffs' further responses to the particulars order are deficient in that -
(a)They repeat the vice, warned against in my reason of 29 May 1998 and 18 September 1998, of incorporating publications as particulars. In some cases parts of those publications have been referred to but in most cases the parts identified are not recognisable as particulars provided in response to paragraphs of the particulars order.
(b)Although the particulars do contain a wealth of material dealing with the indigenous occupation of Fraser Island, there does not appear to have been any effective attempt to address the critical question of contemporaneous connection. I use the expression “critical” because it is plain from the authorities that there must be an identifiable community which has retained a connection or association with the land claimed, which community currently acknowledges and observes the traditionally based laws and customs of such community.
In Mason v Tritton (1994) 34 NSWLR 572, Priestley JA, with whose reasons Gleeson CJ agreed, summarised the matters which must be proved by a native title claimant in order to succeed. The summary concluded as follows -
“2.The native interest must be a recognisable part of a system of rules observed by an identifiable group of people connected with a particular locality: Brennan J (at 58,70); Deane J and Gaudron J (at 86, 88, 108); Toohey J (at 186-187, 188).
3.A person asserting entitlement to enjoyment of the interest at the present day, must show biological descent from the group which was observing the system of rules of which the interest was part; that is show biological descent dating back to just before the establishment of the common law: Brennan J (at 70); implicit in Deane, Gaudron and Toohey JJ in the references given in 2 above.
4.A person asserting such entitlement must also show that the biological descendants of the pre-common law group have continued and are continuing to observe the system at the time the claim is asserted. (References as for 3 above.)”
At the conclusion of the summary, Priestley JA observed -
“The difficulties which persons seeking to establish a present day native right recognised by the common law will frequently encounter, even since the recognition by Mabo v State of Queensland [No 2] of the possibility of their existence, were recognised in the case itself. Deane J and Gaudron J said the practical result of the decision ‘would be largely, and probably completely, confined to lands which remain under Aboriginal occupation and use’ (at 109). Brennan J, having briefly stated what would be necessary to show that ‘the traditional community title’ of a particular clan or group could ‘be said to remain in existence’ (at 59-60), continued (at 60):
‘... However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition.’”
Kirby P's formulations of the matters required to be proved to establish a successful, law claim for native title was somewhat similar. He said at p. 584 -
“If the exacting nature of the evidential burden established by Mabo were not immediately apparent to potential claimants before, this case will serve to make clear the point. In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo, the evidence must be sufficient to demonstrate:
(1)       that traditional laws and customs extending to the ‘right to fish’ were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory. For New South Wales, that time will be taken as 7 February 1788: see Castles, An Australian Legal History, (1982) Sydney, LBC, at 24-25;
(2)       that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community;
(3)       that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted, to observe the relevant traditional laws and customs; and
(4)       that the appellant's activity or conduct in fishing for abalone was an exercise of those traditional laws and customs.”
That formulation was approved in Derschaw v Sutton (1997) 17 WAR 419(FC).
In Kanak v National Native Title Tribunal (1995) 61 FCR 103, after referring to passages from the judgment in Mabo v State of Queensland [No 2], the Court observed -
“It follows from these passages that the content of native title recognised by Mabo (No 2) is determined by the laws and customs of the indigenous inhabitants. But it is essential that there be an identifiable community, which has retained the requisite connection or association with the land claimed since the time the Crown acquired the radical title to the land. In order for native title to survive, there must have been an appropriate relationship between a particular clan or other group and the land. The precise nature of that relationship has not yet been authoritatively determined. However, the judgments refer to enjoyment of the land by the clan or group and appear to contemplate some continuing physical connection or association: see Coe v Commonwealth (1993) 68 ALJR 110 at 119, per Mason CJ. Whatever the nature of the association, however, native title can be enjoyed only by members of an identifiable community who are entitled to enjoy the land under the traditionally based laws and customs, as currently acknowledged and observed, of that community. Individuals may have native title rights that are protected, but these rights are dependent upon the existence of communal native title and are ‘carved out’ of that title. The only persons entitled to claim native title are those who can show biological descent from the indigenous people entitled to enjoy the land under the laws and customs of their own clan or group. (An adoptive relationship perhaps may be enough; but that is not a question which must be decided in this case.)”
The defendants rely also on Coe v The Commonwealth (1993) 68 ALJR 110 in which Mason CJ observed at 119 -
“It seems to me that, if the plaintiff asserts native title to land, then the plaintiff must establish the conditions according to which native title subsists. Those conditions include (a) that the title has not been extinguished by inconsistent Crown grant and (b) that it has not been extinguished by the Aboriginal occupiers ceasing to have a requisite physical connection with the land in question. In Mabo [No 2], Brennan J said:
‘Native title to an area of land which a clan or group is entitled to enjoy under the laws and customs of an indigenous people is extinguished if the clan or group, by ceasing to acknowledge those laws, and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last of the members of the group or clan.’”
Alleged failure to disclose an arguable case
The defendants also seek to strike out the further amended statement of claim on the grounds that it does not disclose an arguable claim to a native title interest.
As Barwick CJ remarked in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 -
“The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them (the pleadings) to stand would involve useless expenditure’.”
It is also well established that a power to strike out pleadings should be exercised sparingly and in a clear case: General Steel Industries (supra) and Dey v Victorian Railways Commissioner (1948-49) 78 CLR 1.
Before striking out a claim based on a developing and comparatively uncertain area of the law such as that relating to native title, it is necessary, in my view, to exercise even more than the usual degree of caution.
But in my view this case falls within the principles expressed by Barwick CJ in General Steel Industries. My reasons for so concluding are that the plaintiffs' claim, as particularised, falls far short of containing allegations which, if proved on the trial of the action, would satisfy the requirements for a valid native title claim set out in paragraphs 36 to 40 hereof.
In arriving at this conclusion I have regarded the plaintiffs' pleaded allegations and particulars as generously as possible. Even so, no particulars are given which come near showing any contemporary or continued observance of traditional laws and customs. The particulars also disclose no real link or connection between most, if not all, of the plaintiffs and the land the subject of the claim. As I mentioned earlier, the particulars disclose that none of the plaintiffs reside on Fraser Island. Four reside on the mainland in the vicinity of Fraser Island, but as far as one can tell from the allegation in the statement of claim as particularised, they reside and conduct themselves in a way no different from other inhabitants of the area.
The plaintiffs, in my view, on their case as particularised, would be unable to establish indicia of native title rather less onerous than that suggested by the passages from the judgments in Coe v. The Commonwealth, Kanak v. Native Title Tribunal and Mason v. Tritton quoted above. Consequently, in my view, the statement of claim should be struck out.
Conclusions on the other aspects of the defendants' claims.
The plaintiffs' have failed in a number of significant respects to comply with the particulars order and with orders made by me extending time for compliance from time to time. That is not because the plaintiffs have not made attempts to comply. In my view, the plaintiffs, particularly after the May 1998 hearing have put in a great deal of effort with a view to complying. They have failed because of a combination of factors including the complexity and difficulty of the case they have mounted and an inability through lack of formal legal training, to properly analyse and address the requirements imposed on them by the particulars order.
It is difficult not to have some sympathy with the plaintiffs' position. There is a wealth of evidence dealing with the habitation of much of the area the subject of the claim by the three relevant tribal groups, the dispossession of the original inhabitants and as to the fact that some, at least, of the plaintiffs are blood descendants of the original inhabitants. But if the plaintiffs wish to pursue their complex claim it is incumbent on them to present it in an acceptable and sustainable form. It is now over four years since the action was commenced and the plaintiffs, despite receiving considerable indulgence and promptings, have not properly particularised their claims. Alternatively, such particulars as they are able to give do not make out a sustainable case. I do not consider it appropriate that the time for compliance with the particulars order be further extended.
In Bailey v FCT (1977) 136 CLR 2 Gibbs J said at 219 of particulars -
“They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other they save expense by keeping the conduct of the case with due bounds.”
The learned author of Bullen and Leake and Jacob's Precedents of Pleadings (12th ed., 1975) states at 115 -
“where the information asked for is clearly necessary to enable the applicant properly to prepare for trial, or where in other respects the application is a proper one, the information must be given, even though it discloses some portion of the evidence on which the other party proposes to rely at the trial.”
The tendency of the courts of recent times is to adopt a liberal approach to the degree of particularisation of an opponent's pleadings to which a party is entitled. See eg., Philliponi v Leithead (1959) 59 SR (NSW) 352, 358 and NRNQ v MEQ Nickel Pty Ltd (1991) 2 Qd R 592 at 594-5. Also, courts are tending to take a more active and interventionist role in the management and conduct of litigation. Available resources must be used with reasonable efficiency so as to enable litigants generally to have timely access to judicial determinations. See of the observations of Toohey and Gaudron JJ in Sali v. SPC Ltd (1993) 67 ALJR 841 at 849. In State of Queensland v. J.L. Holdings Pty Ltd (1996-1997) 189 CLR 146 Dawson, Gaudron and McHugh JJ referred to the discussion of case management by Gaudron and Toohey JJ in Sali (supra) and observed at 154 -
“However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable.”
I have concluded earlier that the plaintiffs' case, as presently particularised, is not fairly arguable.

Moreover, this is a case in which proper particularisation of allegations in the statement of claim is essential if the defendants are to know precisely the case they have to meet and how to prepare to meet it. Also, the plaintiffs will not be in a position to conduct their case in any organised and sensible fashion if they are unable to provide the particulars which remain outstanding.
Absent such particulars, the trial of the action would develop into a morass which would unduly and unfairly (in relation to other litigants as well as the defendants) consume the time of a judge of this Court. Apart from the considerable and unnecessary expense of such a trial, it has the potential to so confuse and complicate as to make necessary fact finding by the trial judge extremely difficult and thus more prone to error.
For these reasons, I consider it desirable that the statement of claim should be struck out for non-compliance with orders of the Court and on the basis that the statement of claim, as particularised, would unduly prejudice and delay the fair trial of the action.
Orders to be made consequent on the above conclusions
I will invite submissions as to the formal orders which ought be made. If the action is stayed or dismissed there will be no impediment to the plaintiffs (or other appropriate groups of persons) claiming similar relief in another action when, and if, allegations which are arguable are able to be pleaded. There is no limitation period in respect of such native title claims. Alternatively, it remains open to the plaintiffs to lodge a native title claim under the Native Title Act 1993.