Malone on behalf of the Western Kangoulu People v State of Queensland

The case of Malone on behalf of the Western Kangoulu People v State of Queensland involved a native title claim brought by the Western Kangoulu People against the State of Queensland. The applicants sought to strike out the State's response to their statement of facts and issues, arguing that it was made in bad faith and contrary to the legislative intent of the Native Title Act 1993 (Cth) and the overarching purpose of the Federal Court of Australia Act 1976 (Cth). The applicants further contended that the State's conduct amounted to an abuse of process and a breach of the Model Litigant Principles issued by the Queensland Government.

The court had to determine whether the State's response to the applicants' statement of facts and issues was made in good faith, and whether it was consistent with the legislative intent of the Native Title Act and the overarching purpose of the Federal Court of Australia Act. The court also had to consider whether the State's conduct amounted to an abuse of process or a breach of the Model Litigant Principles.

The court found that the State's response was not made in bad faith, and that it was consistent with the legislative intent of the Native Title Act and the overarching purpose of the Federal Court of Australia Act. The court held that the State had a duty to take a real interest in the proceeding in the interests of the community generally, but that it also had an important role in ensuring that the purposes of the Native Title Act were pursued in a manner which was timely, efficient and did not involve disproportionate resources. The court found that the State's concerns about the applicants' claim were legitimate, and that it was entitled to refuse to negotiate an agreement under section 87 of the Native Title Act. However, the court held that the State could and should do more to elucidate its concerns and to see if the applicants could resolve them to the State's satisfaction.

The court dismissed the applicants' interlocutory application, but directed the parties to confer about further steps to be taken in the proceeding to facilitate conciliation of the claim. The parties were directed to file agreed orders or, if agreement could not be reached, competing orders together with a submission of no more than 3 pages within 28 days of the date of the order. If the parties were ultimately unable to reach agreement in respect of the applicants' claim, the separate questions should be listed for hearing on the basis of the evidence that had been filed by the applicants, including any supplementary evidence. The State would be entitled to cross-examine witnesses and make submissions in the hearing, subject to the court's usual powers of supervision. If at any such hearing it became apparent that the position adopted by the State on the separate questions was unreasonable, the court had power under section 85A of the Native Title Act to make an appropriate order for costs.