Malone on behalf of the Western Kangoulu People v State of Queensland
[2021] FCAFC 176
•1 October 2021
FEDERAL COURT OF AUSTRALIA
Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176
Appeal from: Application for leave to appeal: Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 File number: QUD 278 of 2020 Judgment of: RANGIAH, WHITE AND STEWART JJ Date of judgment: 1 October 2021 Catchwords: NATIVE TITLE – application for leave to appeal against interlocutory judgment rejecting an application to strike out the State’s Response to the Statement of Facts and Matters which the Applicants sought to have admitted – whether the judgment attended by sufficient doubt to warrant the attention of the Full Court – whether, assuming the judgment to be wrong, the Applicants would suffer substantial injustice by a refusal of leave – application for leave to appeal dismissed by the majority – minority would grant leave but dismiss the appeal. Legislation: Evidence Act 1995 (Cth) s 140
Federal Court of Australia Act1976 (Cth) ss 37M-37P, Pt VB
Native Title Act 1993 (Cth) ss 13, 50, 51, 61, 61A, 81, 82, 84, 85A, 86B, 87, 87A, 94E, 223 and 225
Federal Court Rules 2011 (Cth) rr 16.07, 22, 23.11‑23.13. 28.67
Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1621
Brodie v Singleton Shire Council (2001) 206 CLR 512
Brownley v Western Australia (1999) 95 FCR 152
Charles v Sheffield Resources Ltd (2017) 257 FCR 29
Complete Technology Pty Limited v Toshiba (Australia) Pty Limited (1994) 53 FCR 125
Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1; (2020) 276 FCR 477
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and MarketingPty Limited [2013] HCA 46; (2013) 250 CLR 303
King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454
Lovett on behalf of theGunditjmara People v State of Victoria [2007] FCA 474
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malone on behalf of the Western Kangoulu Peoplev State of Queensland [2020] FCA 1188
Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422
Munn for and on behalf of the Gungarri People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109
North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595
Oil Basins Limited v Watson [2014] FCAFC 154
Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1683
Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494
Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77
Western Australia v Fazeldean (No 2) [2013] FCAFC 58; (2013) 211 FCR 150
Western Australia v Ward (2000) 99 FCR 316
Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992
Widjabul Wia‑Bal v Attorney‑General of NSW [2020] FCAFC 34; (2020) 274 FCR 577
Division: General Division Registry: Queensland National Practice Area: Native Title Number of paragraphs: 243 Date of hearing: 24 May 2021 Counsel for the Applicant: Mr V Hughston SC with Mr C Athanasiou Solicitor for the Applicant: P&E Law Counsel for the Respondent: Mr A Duffy QC with Ms J Brien Solicitor for the Respondent: Crown Law ORDERS
QUD 278 of 2020 BETWEEN: JONATHON MALONE, HEDLEY HENNINGSEN, KAREN BROOME AND CYNTHIA BROOME ON BEHALF OF THE WESTERN KANGOULU PEOPLE
Applicant
AND: STATE OF QUEENSLAND
Respondent
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal is refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RANGIAH J:
The applicant seeks leave to appeal from the interlocutory judgment of O’Bryan J in Malone on behalf of the Western Kangoulu Peoplev State of Queensland [2020] FCA 1188.
The principal proceeding is an application on behalf of the Western Kangoulu People for a determination of native title (the Western Kangoulu determination application). The applicant made an interlocutory application seeking the striking out of a document containing the defence of the State of Queensland (the State). The interlocutory application was dismissed by the primary judge.
The substance of the appeal may be briefly summarised. Orders have been made for the hearing of separate questions concerning the existence of native title over the claim area. After participating in conferences of experts ordered by the Court, the anthropologist retained by the applicant and the anthropologist retained by the State produced two joint experts’ reports (the Experts’ Joint Reports). The experts have jointly expressed opinions to the effect that the Western Kangoulu People hold native title rights and interests in the claim area. However, the State does not accept the experts’ conclusions, is not satisfied that there is a credible basis for the claim, and is not willing, at this stage, to negotiate a consent determination.
The applicant contends that the primary judge erred in failing to find that the State’s conduct is in breach of its obligations under the Native Title Act 1993 (Cth) (the NT Act) to negotiate in good faith and under Pt VB of the Federal Court of Australia Act1976 (Cth) (the FCA Act) to conduct the proceeding as quickly, inexpensively and efficiently as possible. The applicant also alleges that the State’s conduct is an abuse of the process of the Court. The applicant seeks an order striking out what is effectively the State’s defence, so that the Western Kangoulu determination application can proceed unopposed.
In my opinion, the proposed appeal raises issues of general importance and has sufficient merit to warrant the grant of leave to appeal. However, for the reasons that follow, I consider the appeal should ultimately be dismissed.
Procedural history
The primary judge set out a comprehensive description of the procedural history of the Western Kangoulu determination application. The following summary is largely taken from his Honour’s reasons.
The Western Kangoulu determination application was originally filed on 9 May 2013. The most recent form of the application was filed on 10 January 2019. The native title claim group is defined in Schedule A to the application as follows:
The group of persons claiming to hold the common or group rights comprising the native title is the Western Kangoulu People.
A person is a Western Kangoulu person if and only if the other Western Kangoulu People recognise that he or she is biologically descended from a person who they recognise as a Western Kangoulu ancestor, including the following deceased persons:
•Polly aka Polly Brown aka Polly McAvoy;
•John ‘Jack’ Bradley;
•Hanny of Emerald;
•Naimie, mother of Nelly Roberts; and
•Annie/Naimy Duggan and Ned Duggan.
In describing the association of the Western Kangoulu people with the claim area, the determination application states:
5.At the time the crown acquired legal sovereignty over the Application Area, there was a body of Aboriginal people who were associated with the land and waters of the Application Area.
6.The Aboriginal people who were associated with the land and waters of the Application Area were part of a broader regional society, but were a localised constituent part of this society confining their primary territorial interests to the lands and waters of the Application Area. The contemporary members of the claim group have adopted the name “Western Kangoulu” to explicitly distinguish their localised interests from those of their regional neighbours to whom they have close social and cultural ties dating from the pre-sovereignty period.
7.The areas surrounding Western Kangoulu country belonged to groups who have or were identified as: the Jagalingu, Wangan, Karingbal, Kanolu, Wadja and Gangalu amongst others. Together these groups and the Western Kangoulu formed an interconnected cluster of distinct groups who interacted for cultural and social purposes, and shared common spiritual beliefs, religious institutions, social organisation and classificatory kinship systems, and common laws and customs. Together, these groups form what may be termed a regional society situated within the cultural bloc often referred to as the Maric cultural bloc by linguists and anthropologists so named for the common word for human (“Mari”) shared throughout much of this bloc.
The Western Kangoulu claim area is not overlapped by any other native title claims and there are no Indigenous respondents to the determination application. The Western Kangoulu claim area adjoins the boundary of one other native title claim area, which in turn adjoins other claim areas. The Western Kangoulu determination application and the adjoining claims are collectively known as the “Gaangalu Cluster”.
As the Gaangalu Cluster claims are related geographically and form part of a broader regional society, the claims were case-managed together. I was allocated the responsibility of case-managing the claims.
Separate Questions
On 6 December 2017, I ordered that in the Western Kangoulu determination application, the following questions (the Separate Questions) be determined separately from any other questions:
(a)But for any question of extinguishment of native title, does native title exist in relation to any and, if so, what land and waters of the claim area?
(b)In relation to that part of the claim area where the answer to (a) above is in the affirmative:
(i)Who are the persons, or each group of persons, holding the common or group rights comprising the native title?
(i)What is the nature and extent of the native title rights and interests?
The Separate Questions excluded questions of extinguishment and the nature and extent of other interests in the claim area arising under subsections 225(c), (d) and (e) of the NT Act.
At the same time, I made orders for the expert witnesses to attend a conference before a Registrar of the Court for the purpose of narrowing or removing any differences in their respective opinions. I also ordered that the experts produce for the use of the parties and the Court a document or documents identifying with respect to matters and issues within their expertise:
(a)the matters and issues about which their opinions are in agreement;
(b)the matters and issues about which their opinions differ; and
(c)where their opinions differ, the reasons for their difference.
I also directed that the matter be referred generally to a Registrar of the Court to conduct one or more case management conferences, as may be necessary, to assist the parties as the Registrar saw fit.
I made similar orders in each of the other Gaangalu Cluster claims.
While there are almost 100 respondent parties to the Western Kangoulu determination application, only the State is taking an active role in the hearing of the Separate Questions.
Pleadings and evidence
On 21 June 2018, the applicant filed a statement of claim in respect of the Separate Questions.
On 19 July 2018, the State filed a defence putting the applicant to proof on most matters, pleading that it does not know and does not admit those matters.
On 30 August 2018, the applicant filed 12 statements or affidavits of lay witnesses.
On 14 September 2018, the applicant filed an anthropological report of Dr Dee Gorring and Dr Richard Martin (Gorring/Martin Report) and a genealogical report of Dr Hilda Maclean.
On 9 November 2018, the State filed an anthropological report of Dr Anna Kenny. The State did not file any lay evidence.
Preparation for the experts’ conferences
On 19 September 2018, the parties were advised that the Registrar proposed to hold a series of experts’ conferences for the claims comprising the Gaangalu Cluster.
The State had retained Dr Kenny as an expert anthropologist across all four claims in the Gaangalu Cluster. On 19 October 2018, the State filed interlocutory applications in each of the Gaangalu Cluster proceedings seeking relief from its Harman undertaking in each proceeding so that it could provide the material filed in each proceeding to Dr Kenny. On 29 October 2018, Robertson J granted that relief: Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1621.
On 5 November 2018, I revised the programming orders and deferred the date by which the conferences of experts were to be held to 1 March 2019.
Prior to the experts’ conferences, the parties in the Gaangalu Cluster claims engaged in consultation, to some extent coordinated by the State, about the issues to be addressed by the experts. A document entitled “List of Issues for consideration by the expert witnesses” was prepared (List of Issues).
The preamble to the List of Issues recited the order made on 5 November 2018 relating to conferral, which required the experts to set out in their joint report the matters and issues about which they were in agreement, those about which their opinions differed and the reasons for their difference. The order had not required the experts to set out the reasons for any opinion on which they agreed. Nevertheless, the preamble to the List of Issues went on to state:
If each of the experts are able to agree in relation to the answers to the questions asked below, the Joint Report should state the agreed answer to that question, and explain the reasons for that jointly held opinion and the evidence upon which it is based.
Where the experts are unable to agree in relation to the issues identified below, they should each explain the reasons for their respective opinions and the evidence upon which it is based as well as the reasons for not accepting the competing view(s). This can be done by reference to particulars (sic) paragraphs of reports already prepared.
The List of Issues then set out the issues to be addressed in the form of questions to be answered. Under each question, the document reiterated that the experts should include either:
(a)a joint statement of agreement and reasoning for that agreement; or
(b)individual statements of disagreement and reasoning for the disagreement.
Experts’ conferences
The conferences of the experts occurred on 21 and 22 February 2019, convened by two Registrars of the Court.
The first conference, on 21 February 2019, related to each individual proceeding within the Gaangalu Cluster. Relevantly, in respect of the Western Kangoulu determination application, Dr Martin and Dr Kenny conferred and produced a joint report which was filed on 19 March 2019 (Western Kangoulu Joint Report). The report addressed each of the questions set out in the List of Issues. The experts agreed upon the answer to each question. However, the report merely stated the propositions on which the experts agreed and did not state the reasoning for that agreement. The experts’ response was consistent with the order convening the conference, but inconsistent with the preamble to the agreed List of Issues which requested the experts to set out their reasoning for an agreed position.
Attachment 2 to the Western Kangoulu Joint Report was a list of materials considered by the experts for the purposes of the conference (referred to as the “basis material”), which included all material filed in the Western Kangoulu determination application. Dr Martin and Dr Kenny each signed a declaration that, “in expressing the opinions attributed to me in this report [I] have had regard to the basis material and the Statements made at the conference of experts and have made all the inquiries which I believe are desirable and appropriate and that no matters of significance which I regard as relevant have, to my knowledge, been withheld”.
The following is an extract of various questions stated in the Western Kangoulu Joint Report, which were taken from the List of Issues (shown in italics below), and the answers given:
1(a) Were there Aboriginal people in occupation of the Western Kangoulu claim area, or discrete parts of the area, as at effective sovereignty who were united in and by their acknowledgment and observance of a body of laws and customs?
Yes, Aboriginal People were in occupation of the Western Kangoulu claim area.
1(b) If the answer to question 1(a) is “yes”, did those people constitute a society, or part of a larger or regional society, and what is the nature and extent of that society?
The Aboriginal people of the claim area were part of a broader society that included local landholding groups and extended beyond the area covered by the GNP cluster. It is our opinion that other members of this regional society included the Garingbal, Wadja and Gangalu as well as others.
From the limited ethnographic record, it appears that there were social networks that faded out in different areas depending on the location of the respective group.
2.If the answers to questions 1(a) or 1(b) were “yes”, what were the traditional laws and customs of the identified society, including any traditional laws and customs pertaining to rights and interests in relation to land and waters (including the land and waters in the Western Kangoulu claim area) and the transmission of those rights and interests?
‘Traditional laws and customs pertaining to rights and interests in relation to land and waters’ include the ‘transmission of rights and interests in land and waters’, it is therefore superfluous to address these components of the question separately.
Traditional laws and customs:
a.A classificatory kinship system.
b.A form of social organisation encompassing two named moieties and four named sections.
c.An understanding of mythology, including spiritual forces inhering in land and waters.
d.A system of inheritance of identity and generic and locality-specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption.
e.An understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris.
f.An understanding of spirits in the landscape, including appropriate ways of managing spiritual presence.
g.Male and female rituals, including initiation ceremonies.
h.Intermarriage and trade across the regional society and beyond.
i.Various funerary practices.
j.A system of authority emphasising the role of senior people.
k.An embodied relationship between people and their land and waters.
l.The inalienability of rights in land and water.
m.A variety of responsibilities to manage and protect the land and waters.
n.An understanding of sorcery and traditional healing.
o.Customary use of natural resources.
p.Recognition of gender specific and other sensitive significant sites at which certain access protocols apply.
3(a)Did any or all of the following people hold rights and interests in the Western Kangoulu claim area under the traditional laws and customs identified at question 2? If not all of the following persons in the list, identify the persons.
Apical ancestors identified on the Western Kangoulu Form 1
1. Poly aka Polly Brown aka Polly McAvoy
2. John ‘Jack’ Bradley
3. Hanny of Emerald
4. Nannie, mother of Nelly Roberts
5. Annie/Nanny Duggan and Ned Duggan
…
4.If the answer to question 3(a) is “yes”, did they hold the rights and interests on a regional, communal, group or individual basis?
Land holding units at effective sovereignty were clans, whose members held rights and interests as a clan group at a local level. Clan members were recruited by a system with a patrilineal bias.
The local land owning clans formed clusters or aggregations at another level of identification which may have been a regional and/or linguistic identity.
5.Do the members of the Western Kangoulu claim group constitute a society, or part of a larger or regional society that is united in and by their acknowledgment and observance of traditional laws and customs, referred to in question 2?
The WK people are part of a broader or regional society.
6.Having regard to the way in which the claim group is defined in the Amended Claimant Application filed pursuant to orders made on 11 August 2017 (the claim group), and the available evidence, does the claim group (as a whole or in part) acknowledge and observe the traditional laws and customs identified in question 2. If in part, identify the part.
We respond to this question with the use of three categories to reflect different levels of acknowledgment and observance of laws and custom:
1. Observed;
2. No longer observed; or
3.Observed in attenuated form. By this we mean they have been reduced in force or effect while continuing to be observed.
For this purpose we refer to the list of laws and customs at Q2:
A A classificatory kinship system Observed B A form of social organisation encompassing two named moieties and four named sections Not observed C An understanding of mythology, including spiritual forces inhering in land and waters Observed but attenuated D A system of inheritance of identity and generic and locality specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption Observed E An understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris Observed but attenuated F An understanding of spirits in the landscape, including appropriate ways of managing spiritual presence Observed but attenuated G Male and female rituals, including initiation ceremonies Not observed (however see P) H Intermarriage and trade across the regional society and beyond Observed but attenuated I Various funerary practices Observed but attenuated J A system of authority emphasising the role of senior people Observed K An embodied relationship between people and their land and waters Observed L The inalienability of rights in land and waters Observed M A variety of responsibilities to manage and protect the land and waters Observed N An understanding of sorcery and traditional healing Observed but attenuated O Customary use of natural resources Observed P Recognition of gender specific and other sensitive significant sites at which certain access protocols apply Observed 7.Have any of the traditional laws and customs identified in question 6 changed in their nature or content since effective sovereignty, and if so, what is the extent of such changes and are the changed laws and customs traditional?
Since effective sovereignty all laws and customs listed above have adapted, and some have ceased to be observed. Continuing laws and customs vary in the extent of change. However, our opinion is that all of the laws and customs identified as either observed or observed but attenuated at Q7 are rooted in tradition and have been transmitted from previous generations.
8.If the answer to question 6 and/or 7 is “yes”, do members of the claim group continue to possess rights and interests in land and waters under those traditional laws and customs? If yes, do they possess them as a community (or society if they be the same thing in this case) or by a group or groups, or by one or more individuals?
Today the members of the claim group continue to possess rights and interests in land and water through their adapted system of traditional law and custom. In our opinion all members of the claim group hold rights and interests in all of the claim area.
9(a) What, if any, differences are there in the rights holding organisation at the time of effective sovereignty to any claimed rights holding organisation by the claim group?
At sovereignty land holding rights were most likely held by clans. Today land holding rights are held by a broader cognatically constituted group of WK people.
9(b) If differences in the rights holding organisation have been identified in the answer to question 9(a), by which process have any differences taken place?
Adaptation occurred due to population loss (removals, massacres and disease), managing the impact of non-Aboriginal paternity, movement towards townships and settlements, internment at reserves, and loss of detailed site specific knowledge relating to estates. This resulted in a shift from a focus on the local estate to a broader concept of country encompassing multiple estates amalgamated under a language name and identity.
…
11.Have the traditional laws and customs identified in question 2, including those pertaining to the holding of interests in land and waters, continued to be observed and acknowledged by members of the same society from effective sovereignty until the present day?
We confine our answer to the GNP cluster area.
Members of the relevant society have continued to observe a common system of law and custom since sovereignty. Not all of the laws and customs identified at Q2 continue to be observed and acknowledged (see Q6 and Q7).
12.Having regard to the answers to question 8, does the claim group have a connection with the claim area by their acknowledgment and observance of traditional laws and customs.
Yes.
13.If it is considered that connection is maintained by a right holding entity/entities, does this connection extend throughout the area of land and waters claimed in these proceedings? If connection is established only in respect of portions of the claim area, which portions?
Yes WK people’s connection extends throughout the whole of the WK claim area.
The second conference, on 22 February 2019, involved the experts for all the Gaangalu Cluster claims. A joint report of Dr Martin, Dr Kenny, Dr De Rijke, Dr Powell and Mr McCaul was filed on 19 March 2019 (Gaangalu Cluster Joint Report). The report is expressed in two sections. The first section is a collation of the joint reports in respect of each separate proceeding. Accordingly, the opinions expressed by Dr Martin and Dr Kenny in the Western Kangoulu Joint Report that relate to the Western Kangoulu claim are reproduced in the first section of the Gaangalu Cluster Joint Report. The second section of the report is headed, “Society propositions posed by Registrars”. It contains 16 propositions in respect of which the experts were invited to express their agreement or disagreement. The propositions had been prepared by the Registrars convening the conferences of experts without input from the parties. The propositions were expressed as follows (with agreement or disagreement signified by the use of bold type):
1.Effective sovereignty in the area covered by all claims is in the date range 1844-60. [agree/disagree]
2.The word “society” as used in the questions refers to a shared regional system of laws and customs and social networks. [agree/disagree]
3.The term “cultural bloc” and “society” are being used by the experts in the present conference to the same effect. [agree/disagree – except for Dr Powell who would use them interchangeably but prefers the term cultural bloc]
4.The entirety of the area covered by the GNP, Western Kangalou, Wadja and Wulli Wulli #3 overlap area claims is part of a common regional society. [agree/ disagree]
5.The GNP cluster claims are defined as:
a. Western Kangoulu
b. GNP
c. Wadja
d. Wulli Wulli #3 overlap area
[agree / disagree]
6.Some members of the GNP, Western Kangoulu and Wadja claim groups may also identify as “Gangalu” in different contexts and/or through different descent paths. [agree/disagree]
…
11.At effective sovereignty, land holding rights under the traditional laws and customs of the regional society were held by members of local clan groups. [agree/disagree]
12.At effective sovereignty, landholding rights of a particular clan may have overlapped the boundaries between the GNP cluster claims and outside the boundaries of those claims. [agree/disagree]
13.Since sovereignty, an adaptation of the existing land holding system through amalgamation of clan estates and broadening of territorial association is evident. The experts agree that this adaptation is rooted in traditional laws and customs pertaining to rights and interests in land and waters. [agree/disagree]
14.The native title experts agree that the maintenance of rights and interests in land and waters in accordance with traditional laws and customs occurs notwithstanding ongoing and evolving political processes of differentiation between Indigenous people across the GNP cluster area. [agree/disagree]
15.Evaluating the records about apical ancestors’ association to areas is pivotal to a native title inquiry, alongside consideration of the broader social history of the area and the adaptations of indigenous land tenure. [agree/disagree]
16.The claim group description in the Forms 1 subject to agreed changes by the relevant experts, are agreed to be appropriate for all claims by the respective experts except in relation to the following:-
…
Western Kangalou
No Issues – no impediments to matter progressing to a consent determination on basis of the existing claim area and agreed group description (agree/disagree)
…
GNP (see individual conference report)
…
• Polly McEvoy, John Jack Bradley and Annie and Ned Duggan should be withdrawn from the GNP claim description and retained as ancestors of the Western Kangalou people (agreed - the stronger evidence is that they held land holding interests in the Western Kangalou claim area)
The applicant relies upon the agreement of Dr Martin and Dr Kenny that, in respect of the Western Kangoulu determination application, there are “no impediments to matter progressing to a consent determination on [the] basis of the existing claim area and agreed group description”.
Events after the experts’ conferences
On 14 March 2019, the solicitors for the applicant wrote to Crown Law, the solicitors for the State, expressing the view that the matter should not proceed to trial and should instead proceed with negotiations towards a consent determination under s 87 of the NT Act. That approach was said to be supported by the outcomes of the experts’ conferences.
On 22 March 2019, Crown Law replied, saying that the State was not then in a position to agree with that course and required further time to decide whether it would be able to enter into negotiations towards a consent determination. Crown Law’s letter acknowledged the agreement of the experts reflected in the Experts’ Joint Reports, but stated:
However, the reasons necessary to explain the foundation of the agreements of opinions is of concern and requires the State to now undertake a complete review of the expert and lay witness evidence filed in the proceeding and to meet with its expert. It is against that background that the State must consider whether there is a credible basis to enter into consent determination negotiations.
On 30 May 2019, Crown Law wrote to the solicitors for the applicant stating:
The State has now completed reviewing the Western Kangoulu materials and formed the view that they do not provide a credible basis to demonstrate that the requirements of ss 223 and 225 of the Native Title Act 1993 (Cth) are met in this proceeding. On this basis the State is unable to enter into negotiations toward a consent determination.
The State accepts that on an initial reading of the reports produced at the conclusion of the joint conferences of the experts held in Brisbane in February 2019, the experts engaged by the Western Kangoulu Applicant and the State expressed agreement on most matters of substance. The basis for the opinions expressed in the reports is not apparent from the reports themselves and therefore recourse must be had to the individual reports of the experts to understand the basis of the expressed opinions and to assess whether the opinions ought be accepted as providing a credible basis. This step has been undertaken primarily by reference to the material filed by the Applicants, as Dr Kenny, the expert engaged by the State, has only provided an anthropological overview of the material across the claims and she states that it is not intended to be a comprehensive anthropological report on the Gaangulu Nation People cluster, including the present claim.
Having considered the totality of the material, a number of areas of concern to the State are exposed, including, but not limited to, the following:
a) there is not a sufficient factual foundation for the expert opinions;
b) the relevant society is not yet clearly articulated or understood, including the claimed society in the context of the regional society;
c) the composition of the claim group is not settled; and
d) the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional law and custom and connection to the claim area.
Crown Law’s letter of 30 May 2019 went on to explain each of the four identified concerns held by the State in more detail.
On 5 September 2019, Dr Martin provided a response to a concern raised in Crown Law’s letter of 30 May 2019 that the Gorring/Martin Report had been expressly qualified.
During October 2019, the parties filed submissions addressing the further conduct of the proceeding. In its submission, the applicant reiterated its view that the issues in dispute should be resolved having regard to the outcomes of the joint conferences of experts recorded in the Experts’ Joint Reports. The applicant further stated that, depending on the resolution of any statement of agreed facts and substantive issues in dispute between the applicant and the State, the applicant may seek the Court’s leave to file further lay or expert evidence.
On 5 November 2019, I made further orders to prepare the proceeding for a hearing of the Separate Questions, including that the parties exchange amended pleadings addressing all issues other than extinguishment, and that the applicant make any application to strike out the State’s defence by a specified date.
On 6 December 2019, the applicant filed a further amended statement of claim, and a dispute ensued between the parties as to its form.
The proceeding was transferred to the docket of O’Bryan J. His Honour was asked to make orders by consent that adopted a pathway to resolve the procedural impasse that had arisen. The parties agreed that, instead of pleadings, the applicant would prepare a statement of facts and matters which it sought that the State admit, and the State would prepare a responsive document. Relevantly, the consent orders made on 30 March 2020 provided that:
(a)by 17 April 2020, the applicant file and serve a statement of facts and matters which it seeks to have the State admit in relation to the hearing of the Separate Questions;
(b)by 8 May 2020, the State file and serve a response identifying which of the facts and matters it admits and which of them remain in issue in relation to the hearing of the Separate Questions;
(c)by 22 May 2020, the applicant file and serve any application to strike out, or in relation to, the State’s response; and
(d)the applicant’s statement of facts and matters and the State’s response supersede all pleadings.
The applicant filed its Statement of Facts and Matters on 17 April 2020. The document contained 17 statements which are, reasonably closely, drawn from the Western Kangoulu Joint Report. Footnote references are given to the relevant propositions in the Western Kangoulu Joint Report and, in a few instances, references are given to the Gaangalu Cluster Joint Report and to the underlying reports of Drs Gorring/Martin and Dr Kenny.
The State filed its response (the State’s Response) on 8 May 2020. The State’s Response effectively takes the place of a defence. The document contains the following statements under the heading “explanatory comments”:
…
2.Generally, as to the matters raised in the [Statement of Facts and Matters], and the responses provided by the State:
(a) to the extent that the SFM asserts matters that are not in accordance with the Application filed on 10 January 2019, the State notes that the Applicant is not entitled to advance a claim in this proceeding that is in any material respect different from that for which it was given authorisation. To the extent that the Applicant does so and does not take steps to obtain authorisation or properly confine its claim in this proceeding, the State reserves the right to raise the matter with the Court at the appropriate time;
(b) the State intends at trial to explore with the witnesses, statements included in the lay witness material;
(c)opinions expressed in expert reports and reports of joint expert conclaves do not bind the State or equate to a determination of any issue by the Court. They remain subject to considerations of admissibility and weight, including adequacy of the reasoning expressed and whether they are based in reliable and sufficient lay or other evidence and will remain so following testing of that evidence; and
(d) furthermore and in any event, many of the expert opinions are heavily qualified.
3.The following responses ought be read in light of the above comments. Where the State says that it does not know a matter, it does so because the evidence available to date does not properly explain or support that proposition. Where the State admits any proposition, it does so on its own assessment of the available evidence. That is not a concession as to the admissibility or weight of any expert material footnoted in the relevant paragraph of the SFM.
The remainder of the State’s Response responds to the applicant’s Statement of Facts and Matters in the style of a pleading. It identifies certain differences between the Western Kangoulu determination application and the Statement of Facts and Matters; admits certain propositions; asserts certain additional facts relevant to, and potentially in conflict with, the propositions stated by the applicant; and otherwise states that it does not know and does not admit the relevant proposition.
The applicant then filed its interlocutory application on 22 May 2020 seeking an order striking out the State’s Response.
The reasons of the primary judge
Justice O’Bryan observed that the State had indicated that it intends to contest lay and expert evidence filed by the applicant and the Experts’ Joint Reports at the hearing of the Separate Questions, including by way of objections going to the admissibility and weight of expert evidence and cross-examination. The State confirmed that it will not seek to adduce further expert evidence, nor any other evidence, at the hearing of the Separate Questions.
The primary judge noted that the applicant’s strike out application was founded upon the contention that the Experts’ Joint Reports had effectively resolved the central issues in the proceeding. The applicant argued that for the State to adopt a position contrary to the conclusions expressed in the Experts’ Joint Reports was, first, inconsistent with the overarching purpose stated in Pt VB of the FCA Act; second, an abuse of process; third, a failure to negotiate in good faith contrary to the NT Act; and, fourth, a breach of the model litigant principles.
The primary judge observed that in Widjabul Wia-Bal v Attorney-General (NSW) (2020) 274 FCR 577 at [51] and Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 at [21]–[22], it had been held that in determining whether to agree to a consent determination of native title, the State need only be satisfied that there is a credible or cogent basis to conclude that the requirements of s 223 of the NT Act are satisfied, and that it would be inconsistent with the State’s obligations under the NT Act and Pt VB of the FCA Act for the State to require an applicant to go further.
The primary judge observed that the State had advised the applicant that it did not presently consider that there was a credible basis for the Western Kangoulu determination application. The conduct of the State about which the applicant complained was the State’s refusal to accept as determinative of the Separate Questions, the opinion of the State’s own expert, Dr Kenny, as expressed in the Experts’ Joint Reports. The applicant contended that the State should not be entitled to adopt that position in circumstances where it had elected to file and serve Dr Kenny’s expert report and raised no objection to the expert conferences ordered by the Court. The applicant argued that in circumstances where there is agreement between the expert anthropologists engaged by the applicant and the State, there must be a credible basis for the claim.
The primary judge held that an expert retained by a party is not the agent of that party, and it followed that statements made by an expert in their report could not constitute a formal admission by the party in the proceeding, even where the report was filed and served.
The primary judge also held that the model litigant principles issued by the Queensland Government do not create rights in other litigants. It may be noted that the applicant has not reprised in the appeal its submission that the State is bound by the model litigant principles.
The primary judge considered that the real question raised by the applicant’s interlocutory application was whether the conduct of the State was of such a character that should disentitle the State from participating in the hearing of the Separate Questions in opposition to the case advanced by the applicant.
His Honour proceeded to distinguish the present case from the two cases principally relied upon by the applicant, namely Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1683 and Widjabul Wia-Bal.
The primary judge was not persuaded on the evidence that the State was requiring the applicant to go further than establishing that there was a credible basis for the Western Kangoulu determination application, and thereby failing to act in good faith. His Honour held that the agreement of the experts was not conclusive of any issue in the proceeding, and that it was open to a party to demonstrate that the experts’ agreed opinions were based on factual assumptions not shown to be true in the evidence. His Honour noted that the applicant had not attempted to demonstrate that the views expressed by the State were legally and factually untenable by reference to the lay and expert reports, such as to create an inference of bad faith. The applicant had relied solely upon the fact that the State did not accept the conclusory opinions expressed in the Experts’ Joint Reports, and his Honour found that this alone did not establish an absence of good faith.
The primary judge accepted that it was regrettable that the State participated in the conferences of experts without raising any objection as to the adequacy of the experts’ reports that had already been filed, and only raised its concerns after the conclusion of the conferences. However, his Honour considered that the decisions made by the State fell short of constituting an abuse of process. It could not be said that the State was using the Court’s procedures in a manner unjustifiably oppressive to the applicant or in a manner that would bring the administration of justice into disrepute: cf Tomlinson v Ramsey Food-Processing Pty Limited (2015) 256 CLR 507 at [25].
His Honour was not persuaded that the position adopted by the State demonstrated that the State was in breach of s 37N of the FCA Act by conducting the proceeding in a way that was inconsistent with the overarching purpose, or in breach of its duty to negotiate in good faith under the NT Act.
Accordingly, the primary judge dismissed the application to strike out the State’s Response.
The submissions
The applicant’s further amended draft notice of appeal raises, in summary, the following grounds:
(1)The primary judge erred in finding that the State was not requiring the applicant to go further than establishing a credible basis for a determination of native title.
(2)The primary judge should have found that the State was requiring the applicant to go further than establishing there was a credible basis for a determination of native title, thereby failing to act in good faith.
(3)The primary judge erred in concluding that it would remain open to a party in the position of the State to persuade the Court that the agreement reached between the experts lacked a proper basis.
The applicant’s argument starts with the premise that the anthropologist engaged by the State (Dr Kenny) and the anthropologist engaged by the applicant (Dr Martin) are in agreement, in effect, that the Western Kangoulu People hold native title in the claim area. The applicant contends that there must, therefore, be a credible basis for the Western Kangoulu determination application, and the State is acting improperly by refusing to negotiate a consent determination.
The applicant’s allegations of improper conduct proceed on the basis of the following contentions:
(1)The State has an obligation under s 94E(5) of the NT Act to negotiate in good faith, and Widjabul Wia-Bal and Western Bundjalung establish that it is a breach of that obligation for the State to require an applicant to do more than demonstrate a credible basis for a determination of native title.
(2)The State’s conduct, particularly as it filed and served the report of Dr Kenny and did not object to the conferences of experts, is inconsistent with the overarching purpose stated in Pt VB (specifically, ss 37M and 37N) of the FCA Act of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
(3)The State’s conduct is an abuse of the process of the Court.
The remedy sought by the applicant is the striking out of the State’s Response, so that the Western Kangoulu determination application can proceed to an unopposed hearing. The applicant has not sought any order requiring the State to consent to a determination, nor has the applicant applied for summary judgment.
The applicant observes that litigation under the NT Act is not ordinary private inter partes litigation, referring to Western Australia v Fazeldean (No 2) (2013) 211 FCR 150 at [34]. Aside from the Experts’ Joint Reports indicating that the Western Kangoulu claim group holds native title in the claim area and that there is no impediment to progressing to a consent determination on the basis of the existing claim area and agreed group description, the applicant relies upon the following circumstances as establishing a credible basis for the Western Kangoulu determination application:
·There are no contradictors other than the State.
·There are no Indigenous respondents and no overlapping native title determination applications.
·The applicant has filed a body of lay and expert evidence supporting the Western Kangoulu claim.
·The State filed Dr Kenny’s report and, without objection, had Dr Kenny participate in the experts’ conferences convened by two Registrars of the Court pursuant to the conferral order proposed by the State.
·The experts addressed the agreed List of Issues and considered all the material filed in the proceeding.
·The State does not intend to adduce any evidence at the hearing of the Separate Questions.
The State submits, principally, that it is not in breach of its obligation of good faith under s 94E(5) of the NT Act because there are reasonable grounds for its lack of satisfaction that there is a credible basis for the Western Kangoulu determination application. The State also submits that its conduct in opposing the claim, notwithstanding the opinion expressed by the expert witness it retained, is not inconsistent with its obligation under s 37N of the FCA Act.
The relevant statutory provisions
Section 61 of the NT Act describes the kinds of application that may be made, and the persons who may make such applications. Section 13(1)(a) of the NT Act allows an application to be made to the Federal Court, “for a determination of native title in relation to an area for which there is no approved determination of native title”.
Section 225 of the NT Act describes what is meant by a “determination of native title”:
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a)who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b)the nature and extent of the native title rights and interests in relation to the determination area; and
(c)the nature and extent of any other interests in relation to the determination area; and
(d)the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e)to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
…
Section 223(1) of the NT Act defines the expressions, “native title” and “native title rights and interests”:
Common law rights and interests
(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a)the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Section 86B(1) of the NT Act provides that the Federal Court must refer each application made under s 61 for mediation, unless an order is made that there be no mediation.
Section 94E(5) provides:
Each party, and each person representing a party, must act in good faith in relation to the conduct of the mediation.
Section 87 of the NT Act provides, relevantly:
Application
(1) This section applies if, at any stage of proceedings after the end of the period specified in the notice given under section 66:
(a) agreement is reached between the parties on the terms of an order of the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
…
(b) the terms of the agreement, in writing signed by or on behalf of the parties…are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those terms would be within the power of the Court.
Power of Court
(1A) The Court may, if it appears to the Court to be appropriate to do so, act in accordance with:
(a) whichever of subsection (2) or (3) is relevant in the particular case; and
(b) if subsection (5) applies in the particular case—that subsection.
Agreement as to order
(2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing.
…
Section 87A of the NT Act applies where agreement is reached upon a proposed determination of native title in relation to an area included in the area covered by the original determination application, and allows the Court to make an order in, or consistent with, the terms of the proposed partial determination without holding a hearing.
A determination of native title made under s 87 or s 87A of the NT Act following agreement between the parties is commonly referred to as a “consent determination”, and it is convenient to use that expression in these reasons.
Part VB of the FCA Act comprises ss 37M to 37P. Section 37M provides, relevantly:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Court;
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
…
Section 37N(1) of the FCA Act provides:
(1)The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
Section 37P of the FCA Act provides, relevantly:
(1) This section applies in relation to a civil proceeding before the Court.
(2)The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.
…
Consideration of the argument that the State is in breach of its obligation to act in good faith
It is convenient to begin by considering the broadest proposition contended for by the applicant: that it is a breach of the obligation of good faith under s 94E(5) of the NT Act for a State party to require an applicant to do more than demonstrate a credible basis for a determination of native title. That submission relies upon the judgments in Western Bundjalung and Widjabul Wia-Bal.
In Western Bundjalung, Jagot J made a consent determination of native title. The matter had a long history, and her Honour was critical of prior conduct of the State party. Her Honour’s reasons included the following comments:
21In reconciling its multiple duties the orthodox position which has emerged and been settled for many years is that the State should not require an applicant to prove to it on the balance of probabilities that each of the requirements of s 223 is satisfied. For the State party to discharge its duties not only to the public at large but also to the claim group and to the Court, and to fulfil its fundamental obligations of fidelity to the objects of the NTA and the requirements of the Court Act, it looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied whether or not that basis would constitute admissible evidence in contested litigation or would enable the Court to make findings about s 223 in favour of an applicant on the balance of probabilities…
22For a State respondent to apply a more onerous standard for the purpose of negotiations with a view to reaching an agreement under s 87 would involve an impermissible departure from the standards of fidelity to the provisions of the NTA, the Court Act and the obligations of such bodies to act as a model litigant...
In Widjabul Wia-Bal, Reeves, Jagot and Mortimer JJ considered a submission by the applicant that the Attorney-General of New South Wales could not lawfully require that the applicant enter into an Indigenous Land Use Agreement (ILUA) as a condition of the Attorney-General agreeing to a native title determination.
The Full Court at [3] began by referring to the Preamble to the NT Act which provides, relevantly, that:
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.
The Full Court continued at [4]:
The Preamble thus establishes the intention of the Commonwealth Parliament that the ascertainment of native title rights and interests is to be achieved through a conciliatory process of negotiation, facilitated by governments, rather than by the conventional method of resolving disputes about rights through adversarial litigation.
The Full Court at [36]-[37] agreed with the opinion of Mansfield J in Brown v South Australia (2010) 189 FCR 540 at [38], that:
If there is no bona fide dispute about issues concerning a proposed consent determination, it would be a breach of any obligation to negotiate in good faith to use the carrot of consent to the determination as leverage to secure agreement on other matters such as a sustainable benefits term.
The Full Court at [37] quoted from the judgment of White J in Charles v Sheffield Resources Ltd (2017) 257 FCR 29 at [94] as follows:
Negotiating in good faith has been said to involve acting honestly, without ulterior motive or purpose, with an open mind, willingness to listen, willingness to compromise, an active and open participation of the other parties, and the making of every reasonable effort to reach an agreement. Delay, obfuscation, intransigence and pettifoggery have been said to be indicia of a want of good faith. Negotiation in good faith is not confined to the making of a reasonable offer.
(Citations omitted.)
The Full Court went on to hold at [38] that s 94E(5) of the NT Act clearly and unambiguously imposes a duty of good faith in relation to the conduct of a mediation. The Full Court at [39] considered that the doctrine of abuse of process provides a “useful analogue” for the considerations that might inform an evaluation of whether a party is not conducting itself in good faith and the remedies available to redress any breach of the duty. The Full Court observed that the Court’s powers to redress or ameliorate the effect of a breach include making orders removing a party, striking out a pleading, allowing summary judgment, granting an injunction, or awarding costs.
The Full Court in Widjabul Wia-Bal continued at [51]:
51Before considering the facts of the present case it is necessary to say something about the Court’s power to make a determination of native title in accordance with an agreement. The Court must be satisfied that it is appropriate to make the orders specified in the agreement and that there is power to do so: ss 87(1)(c) and 87A(4) of the NT Act. It has been stated that it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application: Lovett v Victoria [2007] FCA 474 at [37] (Lovett) citing Munn v Queensland (2001) 115 FCR 109; see also Watson v Western Australia (No 6) [2014] FCA 545 at [29]. Further, in Lovett it was made clear that “[t]he Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court”. To fulfil its function under the NT Act, in the context of a mediation with a view to entering an agreement under ss 87 or 87A, the State is not required to obtain proof from an applicant which would demonstrate to the civil standard of proof, on the balance of probabilities, that the native title rights claimed by the applicant exist. Indeed, for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith in the conduct of the mediation. It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State’s perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in ss 87 or 87A of the NT Act. To place such an unwarranted burden on an applicant would be fundamentally inconsistent with the scheme of the NT Act and in particular the provisions identified above which constitute the “special procedure”, which the Preamble to the statute recognises is required for the “just and proper ascertainment of native title rights and interests”. Such an act would readily be characterised as an act not in good faith in the conduct of a mediation.
(Underlining added.)
Having accepted that the Attorney-General had an obligation to negotiate in good faith, the Full Court proceeded to consider whether the applicant had demonstrated a breach of that obligation. The Full Court held at [69] that a lack of evidence about the content of the applicant’s material and the terms of the draft ILUA effectively precluded any evaluation of whether the relevant conduct, “may be irrational, unreasonable, unfair or oppressive in the circumstances or involve any other conduct which may fall below the standard of good faith which the NT Act requires”.
However, the Full Court went on to observe at [71] that as the Attorney-General had accepted a credible basis for the existence of some native title rights, there was no bona fide dispute about those rights for the purpose of making an agreement under s 87 or s 87A of the NT Act. The Full Court stated that the duty of good faith under s 94E(5) of the NT Act and the duties under ss 37M(1) and 37N(1) of the FCA Act require that in the ordinary course, the Attorney-General would negotiate an agreement recognising at least those rights even in the absence of an ILUA.
There is, in my respectful opinion, a substantial basis for questioning the statement at [51] of Widjabul Wia-Bal that, “for the State to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights sought in the determination would be inconsistent with the obligation in s 94E(5) to act in good faith”. This statement of principle was evidently derived from Western Bundjalung at [21] where it was said that a State party, “looks for only a credible or cogent basis to conclude that the requirements of s 223 are satisfied”, and at [22], that it is impermissible, “to apply a more onerous standard for the purpose of negotiations with a view to reaching an agreement under s 87”. The expression “credible or cogent” denotes a standard that is lower, perhaps substantially lower, than the balance of probabilities. Widjabul Wia-Bal and Western Bundjalung establish that where there is a credible or cogent basis for concluding that the requirements of s 223 are satisfied, the obligation to act in good faith requires that a State party seek to negotiate an agreement upon the terms of a determination of native title. The effect of these cases is that where an applicant demonstrates a credible or cogent case, a State party must, subject to negotiation of appropriate terms, agree to a determination.
There is no express statement in the NT Act of any principle of the kind enunciated in Widjabul Wia-Bal at [51] and Western Bundjalung at [21]-[22]. The principle rests upon implication from the emphasis placed by the NT Act upon consensual resolution of determination applications, from the requirement that all parties must act in good faith in the conduct of a mediation, and from the special position of the State in a native title proceeding.
The special position of a State party was described in Munn (for and on behalf of the Gunggari People) v State of Queensland (2001) 115 FCR 109. In that case, Emmett J observed at [29], that the State party appears, “in the capacity of parens patriae to look after the interests of the community generally”.
The emphasis upon consensual resolution is made manifest in the Preamble, which forms an important part of the context in which the provisions of the NT Act are construed: see North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 at 637. There is considerable force in the reasoning in Widjabul Wia-Bal and Western Bundjalung that the powers of the Court to approve agreements under ss 87 and 87A reflect an intention to rectify the consequences of past injustices by the special measures contained in the NT Act, and to avoid the necessity for lengthy and onerous litigation. However, it is strongly arguable that these cases fail to construe comments made in Lovett on behalf of theGunditjmara People v State of Victoria [2007] FCA 474, which in turn relied upon Munn, concerning the role of a State party, in their proper context.
In Munn, Emmett J considered the standard of scrutiny the Court is required to apply to a determination proposed to be made by agreement under s 87 of the NT Act and the factors relevant to the exercise of the Court’s discretion under that provision. His Honour held:
22 …The Court must, of course, exercise caution where any declaratory order involving property rights is sought. Orders that have particular public interest elements require closer examination by the Court than orders that operate solely inter partes. A determination under the Act that native title exists, and perhaps even a determination that it does not exist, is a real action, in the sense that an order generally operates against the entire world. It does not only resolve an issue inter partes.
…
28 …The Court must have regard to the objects and purposes of the Act. One important object and purpose to be found in the Act is resolution of issues and disputes concerning native title by mediation and agreement, rather than by Court determination. Detailed procedures are set out in the Act to achieve those objects.
29 Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely.
30 However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally.
…
(Underlining added.)
As Emmett J observed in Munn at [22], a determination that native title exists operates against the entire world, not merely between the parties to the determination application. So, for example, s 61A(1) of the NT Act provides that a native title determination application must not be made in relation to an area for which there is already an approved determination of native title, and a determination may affect the interests of persons who acquire non-native title interests in the determination area in the future. Emmett J considered at [29] that the Court needs to be satisfied, at least, that a State party is satisfied as to the cogency of an applicant’s evidence before making a consent determination. That is because the State is responsible for protecting the interests of the community generally.
In Lovett, North J also considered the level of scrutiny a Court is required to give to a proposed consent determination under s 87 of the NT Act. After referring to the importance placed by the NT Act on mediation as the primary means of resolving native title determination applications, his Honour continued:
37In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States.
38The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. These comments relate to the requirements of s 87, and are not intended to reflect on the conduct of the State in this case.
(Underlining added.)
In Lovett, North J observed at [37] that the Court must be satisfied that the agreement is “appropriate”, and this requires satisfaction that the agreement has been freely entered into by the parties on an informed basis. His Honour considered that, in respect of a State party, this requirement can be met through the Court’s satisfaction that the State party has satisfied itself that there is a credible basis for a determination application. His Honour went on to indicate at [38] that the State party can be satisfied that there is a credible basis upon significantly more limited material than would be required for a contested hearing. His Honour cannot be understood as suggesting that the State is under an obligation to agree to a determination if satisfied that there is a credible basis for a determination application.
In Widjabul Wia-Bal, the Full Court’s reasoning at [51] started with the proposition derived from Lovett and Munn that the Court may be satisfied that an agreement under s 87 of the NT Act is appropriate where the State party has satisfied itself that there is a credible basis for the determination application. The Full Court then observed that in order to agree to a determination, the State party is not required to obtain proof from an applicant which would demonstrate, on the balance of probabilities, that the native title rights and interests claimed in the determination application exist. That is obviously true.
The Full Court then reasoned at [51] that:
It cannot be an act in good faith in the conduct of a mediation to require an applicant to provide the State with more than that which is legally necessary for the State to be in a position to inform the Court that, from the State’s perspective, it is appropriate for the Court to make the determination of native title in orders giving effect to the terms of an agreement as provided for in ss 87 or 87A of the NT Act.
There are several premises involved in this passage. Some are undoubtedly correct. It is true that by agreeing to a determination, the State party represents to the Court that, from the State party’s perspective, it is appropriate for the Court to make the determination of native title. It is also true that by agreeing to a determination, the State party represents that it is satisfied that the applicant has demonstrated “at least” (to use the words of Munn at [29]) a cogent or credible case. However, the Full Court’s reasoning then proceeds on the basis that it cannot be an act in good faith for the State party to require an applicant to demonstrate more than a cogent or credible case. It is at this point that the reasoning arguably breaks down. The Full Court interprets the obligation to act in good faith as requiring that where the State can agree, it must agree.
As the Preamble makes clear, the NT Act strongly promotes the consensual resolution of native title determination applications, “if possible”. It is obvious that consensual resolution will not be possible where one or more parties decline to consent. Where consensual resolution is not possible, the NT Act provides for determination of an application by the Federal Court under an adversarial process. The Court has jurisdiction, under s 81 of the NT Act, to hear and determine applications filed in the Court.
It is true that litigation under the NT Act is not ordinary private inter partes litigation, at least in the senses that a determination may affect the interests of persons who are not parties and that the matter ordinarily remains in mediation throughout its currency. However, native title litigation does have many of the features of ordinary private inter partes litigation. The applicant bears the onus of proving that, aside from questions of extinguishment, native title exists in relation to the claim area: Western Australia v Ward (2000) 99 FCR 316 at [114], [120]. Section 140(1) of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the Court must find the case of a party proved if satisfied that the case has been proved on the balance of probabilities. Section 82(1) of the NT Act provides that the Court is bound by the rules of evidence, except to the extent that it otherwise orders.
It can readily be accepted that a State party will fail to act in good faith if it does not attempt to reach agreement in circumstances where there is no bona fide dispute about the existence of native title rights and interests in relation to a particular area or areas. It is much less obvious that a State party breaches its duty of good faith where the State party is not satisfied that the applicant can prove the existence of native title on the balance of probabilities upon admissible evidence, and is, for that reason, unwilling to negotiate a consent determination.
It is undoubtedly open to a State party to reach agreement with the applicant for the purposes of s 87 or s 87A of the NT Act even where it is not satisfied that the applicant’s material demonstrates the existence of native title to the standard of the balance of probabilities. However, that is a quite different proposition to inferring a legislative intention that the State party must negotiate an agreement which recognises the existence of native title even though the applicant has only demonstrated a credible or cogent case.
The issue must be considered in the context that, as was held in Munn at [29], the State party, “appears in the capacity of parens patriae to look after the interests of the community generally”. While it is true, as was observed in Western Bundjalung at [20], that the State party’s duty encompasses the interests of the claim group, the duty also extends more broadly. In Smith v State of Western Australia (2000) 104 FCR 494, Madgwick J observed at [38] that:
State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land.
In its decision-making, a State party is required to balance the benefits of agreeing to a determination of native title, against any effects that may be regarded as adverse to the interests of the general community. So, for example, s 84(9) of the NT Act contemplates that the interests of persons concerned about the effects of a determination of native title upon public rights of access to, or use of, the claim area may properly be represented by a State party. Where there is a bona fide dispute about the existence of native title, a State party may require the applicant to prove its case on the balance of probabilities in contested litigation, but need not necessarily do so. The State party’s decision-making may be influenced by a wide array of legitimate considerations relating to the interests of the State itself and the community generally.
It is difficult to see that the legislative intention could be to effectively require a State party to agree to a determination of native title upon the applicant demonstrating, on untested evidence, a credible or cogent case. That is particularly so when the only standard of proof clearly contemplated is the balance of probabilities, and no standard of credibility or cogency is stipulated in the NT Act.
The reasoning of the Full Court in Widjabul Wia-Bal also results in the incongruity that an applicant who is able to demonstrate a credible case cannot be required by a State party to prove its case to the Court on the balance of probabilities; whereas an applicant who is unable to demonstrate a credible case to the State party will have to prove their case to the Court on the balance of probabilities.
Sections 87(1A) and 87A(4)-(5) of the NT Act require the Court to be satisfied that it is “appropriate” to make orders in the terms agreed between the parties. It is arguable that the Full Court’s reasoning in Widjabul Wia-Bal conflates that which the Court requires of the State party in order for the Court to be satisfied that a consent determination is appropriate, with the obligation of the State party to act in good faith. When the State party agrees to a determination, the Court need not examine for itself whether the evidence establishes that native title exists, and may be satisfied that the determination is appropriate on the basis of the State party’s satisfaction that there is at least a cogent or credible basis for the determination application. Upon the reasoning in Widjabul Wia-Bal, if the State party fails to engage in negotiations for a consent determination when an applicant demonstrates a credible case, the State party must be failing to act in good faith. That reasoning may give the obligation of good faith under s 94E(5) a content that is incompatible with the broader context of the NT Act.
For these reasons, it is open to doubt the view expressed in Widjabul Wia-Bal at [51] and Western Bundjalung at [21]-[22], that it is inconsistent with the obligation to act in good faith for a State party to seek more from an applicant than such material as establishes a credible basis for the existence of the native title rights and interests sought. It is not entirely clear whether that view formed part of the ratio decidendi of Widjabul Wia-Bal, and that question was not argued in the appeal.
It is unnecessary to express any final opinion upon these matters. That is because the State’s primary submission is that it is not in breach of its obligation of good faith under s 94E(5) of the NT Act because it has reasonable grounds for its lack of satisfaction that there is a credible basis for the Western Kangoulu determination application. The applicant submits, on the other hand, that the only conclusion available is that a credible basis for the claim exists and the State’s failure to accept that conclusion demonstrates an absence of good faith.
Earlier, the Judge had noted that, having been given the opportunity to adduce expert anthropological evidence, the State would not be given the opportunity to adduce further anthropological evidence at trial, and that, in any event, the State did not seek to do so. His Honour also noted that the only evidence to be adduced at trial would be that led by the applicants, with the State being entitled, subject to the Court’s supervision, to cross‑examine and make submissions, at [5].
The Judge concluded by accepting that the State had concerns in relation to the applicants’ claim which had caused it to refuse to negotiate an agreement under s 87 of the NT Act, at [86]. His Honour then proposed that the State articulate its concerns about the claim in a series of detailed questions to the applicants, based upon the lay and expert evidence which had been filed. The Judge contemplated that the applicants would then have an opportunity to answer those questions by reference to the existing lay and expert evidence and, to the extent which they considered it appropriate to do so, to file further lay or expert evidence. His Honour made orders directing the parties to confer with a view to agreeing on a regime to give effect to those proposals.
The Draft Notice of Appeal
The applicants’ Draft Notice of Appeal, which is in its third iteration, contains three grounds. The second is in effect a more particularised mirror image of the first so that it is unnecessary to address the latter separately.
By Ground 2, the applicants contend that the Judge should have found that the State was requiring them “to go further than establishing that there was a credible basis for [the] application and was thereby failing to act in good faith pursuant to its obligations under the NT Act or to act consistently with its obligations under s 37M of the Federal Court of Australia Act 1976 (Cth)”. This ground is supported by two particulars. The first is to the effect that, in view of the agreed opinions in the WK Joint Report, the Judge should have found that the State’s refusal to accept that there was a credible basis for the applicants’ application is untenable. The second is to the effect that, in determining that the State was entitled in its Response to refuse to make admissions consistent with the agreed position of the experts, the Judge had failed to give any or sufficient weight to the considerations that:
(a)their claim is un‑overlapped, not contested by any indigenous respondent and is supported by 12 statements or affidavits of indigenous witnesses, which had been filed some six months before the conference of experts;
(b)both they and the State had filed a number of expert reports before the conference of experts;
(c)the State had consented to the orders concerning the convening of the expert conferences, had agreed on the list of issues which the experts were to consider and had not raised any issue concerning the adequacy of the expert reports;
(d)in the joint expert report, the respective experts had agreed that the claimant group holds native title in the application area;
(e)although the State refused to accept the conclusions in the joint expert report, it had not in the hearing before the Judge, produced any evidence serving to contradict those conclusions and had said that it would not seek to adduce evidence at the hearing of the separate questions on connection; and
(f)the State’s attitude on connection will necessitate a fully contested hearing of the separate question of connection.
By Ground 3, the applicants contend that the Judge erred in concluding that it remained open to the State “to persuade the Court that the agreement reached between the experts on the issues which they addressed and which were set out in the joint expert reports lacked a proper basis”.
No substantial injustice
It is convenient to consider first whether the applicants will suffer substantial injustice if, on the assumption that the Judge’s decision is wrong, leave to appeal is not granted.
In the proceedings at first instance, the applicants accepted, appropriately, that the Court does not have power to compel the State to consent to a determination under s 87 of the NT Act and that a striking out of the State’s Response could not lead to them having an entitlement to summary judgment. They accepted that, even in that circumstance, it would still be necessary for the Court to be satisfied of the requirements under ss 223 and 225 of the NT Act. The applicants submitted to the Judge that, if the State’s Response was struck out, the Court could then remove the State “as an active party” in the determination of the separate questions. They also foreshadowed seeking orders referring the proceeding for case management or mediation with a view to progressing the application to a consent determination.
The applicants did not maintain this position on the appeal. In response to a question from the Court, counsel said that he had not given consideration to how the strike out of the State’s Response would advance the applicants in the proceeding. He ventured the possibility that, if the Response was struck out, it would have the consequence that the facts in the applicants’ SFM would be deemed to be admitted, but then acknowledged that:
(a)the SFM was not a pleading to which the pleading regime in the Federal Court Rules 2011 (Cth) (the FCR) applied; and
(b)the SFM was not equivalent to a notice to admit the facts and therefore was not subject to the provisions of r 22 in the FCR.
In relation to the first of these acknowledgements, we understood counsel to be referring specifically to r 16.07 in the FCR which provides that an allegation in another party’s pleading which is not specifically denied is to be taken to be admitted. Counsel’s acknowledgement was correct – see the definition of “pleading” in the Dictionary in Sch 1 to the FCR.
Counsel also acknowledged that, if the State’s response was struck out, the applicants would still have to lead their evidence to satisfy the Court that the requirements of ss 223 and 225 were satisfied, but ventured that the application would not be actively opposed if the State was prohibited from putting in issue the facts which had been agreed by the experts. Counsel did not explain how the State would be so prohibited, especially as the applicants had not sought an order to that effect at first instance.
Later in the submissions, counsel submitted that, if the Response was struck out, the State would be precluded at trial from objecting to the tender of the joint expert reports and would be precluded from seeking to undermine the evidence of the Indigenous witnesses. Counsel submitted that the State would, at the least, be precluded from “attacking the agreed position of the experts”. Counsel sought to justify that contention by reference to the Court’s ability to control the cross‑examination in proceedings before it.
We note again that the applicants did not seek at first instance an order of the kind to which their counsel referred.
In our opinion, it is improbable, in the circumstances of this action and having regard to the important role played by the States and Territories in native title proceedings, that a judge would make an order precluding the State from participating in the trial in the way presently proposed.
The NT Act itself recognises the important role of the State or Territories – see s 61 (persons who may make applications for determinations of native title), s 84(4) (parties to native title proceedings) and ss 87 and 87A (determinations by consent). That role has also received express recognition by this Court in relation to the making of determinations by consent. In Munn for and on behalf of the Gungarri People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109, Emmett J referred at [29] to the role of the State, as parens patriae, in looking after the interests of the community generally. Likewise, in King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454, Keane CJ at [19] spoke of the role of the State or Territory in acting in the public interest and as the public guardian in satisfying itself that consent determinations of native title are appropriate. It has been said that State and Territory Governments are “necessarily obliged” to subject claims for native title over land and waters owned and occupied by the State or Territory to scrutiny, just as carefully as the community would expect in relation to claims by non‑Aborigines to significant rights to such land: Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494 at [38]. Numerous authorities have spoken of the reliance which the Court places on the relevant State or Territory to discharge its responsibilities appropriately in the assessment of claims for the determination of native title.
Moreover, it is well recognised that applications for the determination of native title are not ordinary inter partes proceedings: Western Australia v Fazeldean (No 2) [2013] FCAFC 58; (2013) 211 FCR 150 at [34] and that determinations of native title are a form of judgment in rem, i.e., binding on the whole world: Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183 at [198]. This consideration by itself makes it appropriate for the Court to look to the State for assistance in reaching the requisite state of satisfaction and, accordingly, to proceed with care. It would be a grave matter, in the circumstances of the present case, for the Court to preclude the State, as the principal respondent and with its important role, from participating in the trial so as to test the evidence advanced by the applicants.
Counsel for the applicants placed considerable emphasis on ss 37M and 37N of the FCA Act. Section 37M states the “overarching purpose” of the Court’s “civil practice and procedure provisions” as being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Counsel noted that s 37M(2) identifies, not exhaustively, objectives of the overarching purpose as including the just determination of all proceedings before the Court, the efficient use of the Court’s resources, the efficient disposal of the Court’s overall case load, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost proportionate to the importance and complexity of the matters in dispute.
Section 37M(3) requires the Court’s civil practice and procedure provisions to be interpreted and applied, and any power conferred or duty imposed by them, to be exercised or carried out in the way which best promotes the overarching purpose.
Counsel noted that s 37N(1) requires the parties to a civil proceeding before the Court to conduct the proceeding, including negotiations for settlement of the dispute to which the proceeding relates, in a way which is consistent with the overarching purpose. He referred to authority suggesting that, by analogy to the doctrine of abuse of process, the Court has the power to control its own processes, including by framing such remedy as is appropriate in all of the circumstances in the event of a contravention of the duties imposed by ss 37N(1) and (2): Widjabul Wia‑Bal v A-G (NSW) at [46].
The applicants’ suggestion that the Court may, in the application of ss 37M and 37N of the FCA Act, preclude the State from effective participation in the trial brings to mind the observations of the Chief Justice in Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1; (2020) 276 FCR 477 concerning the subservience of the principles of efficient case management to substantive common law and equitable rights and entitlements. Zantran concerned the inappropriateness of case management orders abrogating a party’s contractual rights to the confidence and silence of another. The Chief Justice said:
[5]Judicial power has, as one of its hallmarks, a necessary protective feature: the resolution of disputes through the determination of the rights and duties or obligations of parties by and through the application of judicial technique and method based on fair procedure. Through such a process, the rights of parties are protected, and parties are thereby protected from unlawful exercises of power, whether public or private. Through the protection of the rights of parties, the enforcement of obligations of parties, and the control of power thereby, society is protected. This protection or vindication of rights and enforcement of duties and obligations according to principle and by legitimate judicial technique and method marks out the nature of judicial power.Any proposition that, in aid of a more efficient exercise of such power, a court has authority to set to one side, revoke or suspend a party’s legitimate right to call for confidence or silence in another so as to “relieve” that other from the burden of the obligation calls into question the legitimacy of such authority, and whether it could properly be seen as an incident of judicial power.
(Emphasis in the original)
The important underlying principle to which the Chief Justice referred is equally applicable in the present context.
In short, even if the State’s Response was struck out, it is likely that, subject to its proper participation in the kind of pre‑hearing regime proposed by the Judge, the State would still participate in the trial in the same way as it proposes presently. Accordingly, the applicants do not establish that they would suffer any substantial injustice if the primary judgment stands.
The primary judgment is not attended by sufficient doubt
We would also conclude that the decision at first instance is not attended by sufficient doubt as to warrant the attention of the Full Court.
The Judge was plainly correct in reasoning, at [73], that an expert retained by a party in a proceeding is not the agent of the party, with the consequence that statements made by the expert in his or her report, even when filed and served by that party, do not constitute a formal admission by the party in the proceeding. As the Judge noted at [73], this understanding is reflected in rr 23.11‑23.13 of the FCR and in the Harmonised Expert Witness Code of Conduct which is Annexure A to the Expert Evidence Practice Note (GPN‑EXPT).
The Judge was also plainly correct in holding that the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. The applicants did not contend to the contrary.
Thirdly, we consider that there is force in the submission of counsel for the State that the applicants’ approach elides the distinction between facts in issue, on the one hand, and the evidence capable of bearing upon the resolution of those issues, on the other. The joint expert reports are of the latter kind. They provide evidence which, depending upon the soundness of the material upon which the opinions are based, and the soundness of the opinions themselves, are likely to be probative of facts in issue in the underlying proceedings but they are not determinative of those issues. In particular, the experts’ opinions do not bind either the applicants or the State, let alone the Court.
It needs to be kept in mind that an expert opinion, including an opinion contained in a joint report, does not rise above the soundness of the material upon which it is based.
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Heydon JA said:
[85][I]f evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded …
(Emphasis added)
In Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [37], the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) endorsed the statement of Heydon JA in Makita that the expert’s evidence must explain how the field of specialised knowledge in which the witness is expert and on which the opinion is wholly or substantially based applies to the facts assumed or observed so as to produce the opinion propounded.
At least on the face on the materials before the Court presently, there is nothing unorthodox about the State wishing to see that the opinions of the experts do have a proper basis. That basis may be proved by the evidence of the applicants’ witnesses and, depending upon its character, by the anthropologists themselves. Nevertheless, the basis for their opinions must be established.
Counsel seemed to accept that the experts had had to assume the reliability of the information provided in the applicants’ witness statements and affidavits but then submitted that, if the State had not considered it appropriate for the experts to do so, it should not have agreed to the orders made by Rangiah J on 6 December 2017 for the holding of the joint expert conferences. That is to say, if the State had considered that it would not be possible for the joint experts to resolve the issues in the list provided by the parties, it should not have agreed to those issues being submitted to the joint expert conference for consideration.
Counsel’s submissions did not indicate why that should be so, especially given that, at the time that Rangiah J made the orders on 6 December 2017, the witness statements and affidavits had not been filed, and their content was not known. Counsel did not, understandably, contend that some form of estoppel bound the State. Nor did he contend that there had been any express agreement on the underlying factual circumstances on which the experts were to base their opinions. Absent such express agreement, it is difficult to see a basis on which such agreement could have been implied especially given that it may be taken that the parties would have recognised the potential for the joint expert conference to reveal, or to highlight, issues concerning the adequacy, or underlying reliability, of the non‑expert evidence upon which the applicants relied.
Counsel went so far as to contend that it was not open to either party to challenge an opinion agreed upon by the experts in the joint conference. This seemed to be advanced as a proposition of general application. In effect, counsel submitted that, once experts retained by parties have agreed on an issue on which they were requested to opine, each party is thereafter precluded from contesting that opinion, including by showing that the opinion was not soundly based or otherwise affected by error.
With one exception to which we will refer shortly, counsel did not point to authority providing direct support for the proposition that, merely because the respective experts had reached agreement in a court convened joint conference, each party was precluded from subsequently advancing any evidence at the trial to the effect that the joint opinion was not soundly based and should not be accepted.
In our view, the proposition advanced by counsel has only to be stated to be seen to be unsound. In the absence of agreement by the parties, it would vest the determination of issues in the litigation to witnesses and, further, would give binding effect to an agreed opinion reached independently of the parties themselves and without the parties even being present or being heard with respect to it. It would mean that, even when it was plain that the experts had overlooked a relevant matter, misconceived the law or misapplied the requisite methodology, the jointly agreed position would remain binding. Such a position is unsound.
In the first place, it is inconsistent with the intended purpose of the joint expert conference. That purpose in the present case was made plain by the order of Rangiah J on 6 December 2017, namely, “for the purpose of narrowing or removing any differences in their relevant opinions”. His Honour did not direct that a purpose of the conference of experts was, in the event of agreement by the experts on any one of the issues submitted for their consideration, to produce an outcome binding on the parties.
Secondly, the applicants’ submissions seemed to have, as their premise, the implicit assumption that the Court had, in some way, delegated the determination of the issues in the parties’ agreed list to the determination by the experts in their joint conference. Plainly, that is an unsound assumption. The Court does not delegate the jurisdiction vested in it by the FCA Act and, relevantly, by the NT Act of determining the issues in the litigation which arises before it. In ordering the joint conference of experts, the Court was seeking to identify the matters about which the experts may differ to identify the basis for their differences, and thereby to narrow the evidence which would have to be led at trial. It was not putting in place a regime by which issues in the litigation would be determined conclusively for or against a party.
The inappropriateness of the applicants’ contention that agreement by the experts at the joint conference binds the parties is revealed by a comparison of the position reached at a joint expert conference with the status of the report of referees appointed by the Court to conduct an inquiry into a particular issue arising in litigation. In respect of a referee report, the Court may adopt, vary or reject the report, in whole or in part; seek an explanation by way of further report; remit the matter for further consideration by the referee; decide any matter on the evidence taken before the referee, with or without additional evidence; or give judgment or make an order in relation the proceeding or question – see r 28.67 of the FCR. In contrast, the applicants would have it that the agreement of the experts in a joint expert conference is binding on the parties even though, unlike a referee’s inquiry, the parties are not represented in the joint expert conference and do not have the opportunity of contributing to the conclusion of the experts on the matter in issue. Counsel for the applicants was unable to advance a persuasive explanation for this seemingly anomalous position.
The applicants’ contention that the Judge should have found untenable the State’s refusal to accept that there was a credible basis for the application can be addressed quite shortly. The Judge could have reach that conclusion only by an evaluation of the merit of the State’s critique of the material relied on by the applicants and of the expert reports themselves. The Judge was not asked to engage in that evaluation. Moreover, the applicants did not place before this Court the underlying material which would enable an assessment by it of the State’s critique or of its good faith in advancing the critique. In those circumstances, the determination of the present application does not require consideration of the principles concerning obligations of good faith or their application in contexts like the present.
Counsel referred to Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1683. He submitted that Rainbow stood for the proposition that parties are, in effect, bound by the agreement of their experts at an expert conference and that this was the effect of s 37N of the FCA Act. Counsel referred in particular to [53] in which Rares J said:
[53]Moreover, it is not in the interests of justice to allow a party to seek to reopen an agreement between the experts in a joint report prepared under the supervision of Registrars of the Court in a joint conference.
However, in our opinion, Rainbow is properly seen as an unexceptional case management decision concerning a late attempt by a respondent to adduce further expert evidence at a trial when to do so would be prejudicial to the applicant. The observation of Rares J should be understood in that context.
The circumstances in Rainbow were that three respondents in native title proceedings (not the State) sought leave to file and serve an addendum report by their expert anthropologist, Dr Murphy. In the addendum report, Dr Murphy qualified his agreement with the other experts at the joint experts’ conferences held some 3‑4 months earlier and recorded in the joint expert reports. In the second of those reports, Dr Murphy joined in an unequivocal statement that the Kurtijar People held NTRI in particular parts of the claim area. In the addendum report, Dr Murphy sought to modify that agreement.
In dismissing the application of the three respondents for leave to file and serve Dr Murphy’s addendum report, Rares J said of the purpose of the joint conference of experts:
[43]The purpose of the joint experts’ conferences and reports is to enable the Court to have the assistance of a joint position, expressed by independent experts after discussion among them, unaffected by the views of parties who retain them. Those conferences and reports enable the experts to express their opinions in accordance with their overriding obligation to the Court as to the matters about which they agree and those on which they disagree. This ensures that the Court will be informed as to the real issues in the expert evidence that it will need to resolve.
[44]Here, I am not satisfied that there was any basis to think that Dr Murphy misunderstood, or was misled about, what he agreed with the other experts in the joint statement in answer to question 2 in the second report. That joint statement, in plain English, responded to a simple question, also in plain English, and it is unambiguous. Dr Murphy had the opportunity to read the draft of the second report after that draft recorded the agreed position in the joint statement and he also had the opportunity to correct or supplement it with what he wished to say in elaboration of the matters in the draft on which he disagreed before signing the second report.
[45]The parties appear to have proceeded on the basis, thereafter, that the joint statement in answer to question 2 limited the areas in respect of which the experts remained at issue to places other than the Gulf Cost parties’ pastoral leases. That was so although the Gulf Coast parties continued to seek to oppose any finding that there were native title rights and interests over the northern and western areas, despite whatever the experts may have agreed …
His Honour dismissed the interlocutory application seeking leave because of its lateness (it had been filed on 31 July 2019 and the hearing was to commence on 27 August 2019), the absence of any forewarning at the preceding case management hearings that such a report was being obtained, the absence of an explanation for the lateness of the report and for the circumstances in which it was to be provided (Dr Murphy provided the report on the same day that he been asked to give it), and the prejudice to the applicant in having, at short notice, to deal with an issue on which they were not prepared.
His Honour concluded:
[48]In my opinion, it would not be in the interests of justice or consistent with the overarching purpose in Pt VB of the Federal Court Act to permit the Gulf Coast parties to throw open the clear and unambiguous agreement of the experts in the joint statement in answer to question 2 of the second report. Their defence sought to take issue with that agreement after the experts made the second report, hence the applicant’s reply that relied on the joint expert position.
[49]Moreover, they have given no explanation as to why Dr Murphy had subsequently come to any different view in the three months after his signing the second report on 24 April 2019 when he had acknowledged that he had reached his view in light of what he and his fellow experts had discussed with one another, among other matters, having had regard to each other’s views and expertise. That is, ordinarily, the case when experts are able to discuss matters in a neutral environment.
[50]What is striking in Mr Perrett’s affidavit is the absence of any explanation as to how he or his firm came to issue the letter of instructions to Dr Murphy. He gave no evidence about what, if anything, had occurred that would cause those instructions to be given, other than identifying that the applicant appeared to be on fairly solid ground in suggesting, in the draft (joint statement of agreed facts and substantive issues in dispute) that there was no anthropological evidence of a dispute about the holding of native title in the northern and western areas. Indeed, that position had been plain since the parties received the second report three months earlier, as Dr Martin’s evidence confirmed.
[51]I have had regard to the hearing being so close in time to the attempt to rely on the addendum, and the difficulties the applicant has encountered in obtaining access to parts of the claim area that appear (on my impressionistic understanding) to be jealously guarded by, at least, the Gulf Coast parties to the point where, earlier, I almost had to resolve disputes about allowing the applicant to go on parts of the claim area to prepare its evidence.
[52]It would not be appropriate, at this late stage of the proceeding, to allow the Gulf Coast parties to raise anew the issue that the joint statement in answer to question 2 had resolved. To do so would require the applicant to undertake a very substantial amount of work and preparation, including revising what it had done on the faith of the agreed expert position, to deal with an issue that, for the last three months, it was entitled to consider was no longer in play. That has led the applicant to direct its energies to the preparation of other aspects of the case.
(Emphasis added)
It was only after these reasons that Rares J made the statement in [53] on which the applicants relied (set out above). We would regard that statement as directed to the circumstances pertaining in Rainbow, in particular, the injustice which would be suffered by the applicants if the respondents were permitted at a late stage to introduce evidence departing from the position they had adopted following the expert conference. We do not understand Rares J to be stating a principle of more general application, especially when it is plain that there may be circumstances in which it would be in the interests of justice to allow a party to seek to contest an issue upon which the experts had agreed. An erroneous conclusion that native title, or a particular NTRI, did not exist is an obvious example.
The circumstances of this case are quite different to those of Rainbow. In our view, it does not assist the applicants presently.
The applicant also sought to draw support from the decision in Oil Basins Ltd v Watson [2014] FCAFC 154. In that case, the Full Court (Siopis, McKerracher and Barker JJ) dismissed an appeal against an order of costs pursuant to s 85A of the NT Act on the basis that it had been unreasonable for the respondent to have put connection in issue. The respondent had later conceded the claimants’ case on connection. In finding that the respondent had acted unreasonably in initially contesting the issue of connection, the Full Court noted, first, that the only basis upon which it could have succeeded in its defence of the connection claim was by demolishing the opinions of the claimant’s anthropologist, and, secondly, that it could not, on any considered view, have reasonably believed that it would be able to do so, at [184]‑[186].
Plainly, the decision in Oil Basins turned on its own facts, which were different from those of this case. It does not provide assistance to the applicants presently.
For these reasons, we consider that the applicants have not established that the decision of the primary Judge is attended by sufficient doubt so as to warrant the attention of the Full Court.
Conclusion
For the reasons stated above, we would refuse leave to appeal.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices White and Stewart. Associate:
Dated: 1 October 2021
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