Nyamal Palyku Proceeding
[2020] FCA 428
•27 March 2020
FEDERAL COURT OF AUSTRALIA
Nyamal Palyku Proceeding [2020] FCA 428
File numbers: WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 26 of 2019
WAD 289 of 2018
WAD 482 of 2018
WAD 483 of 2018Judge: REEVES J Date of judgment: 27 March 2020 Catchwords: NATIVE TITLE – application to amend pleadings under r 16.53 of the Federal Court Rules 2011 (Cth), or alternatively withdraw admissions – where admissions are made in the course of a separate question proceeding – whether a statement of issues, facts and contentions is a pleading – whether it is in the interests of justice to allow the admissions to be withdrawn – whether legal representatives have the implied authority to make admissions on a claim group’s behalf – whether the admissions were limited to the proceeding in which they were made or whether they were binding in a related proceeding – application dismissed
NATIVE TITLE – application for summary dismissal under r 26.01(1)(d) of the Federal Court Rules 2011 (Cth), or alternatively s 31A of the Federal Court of Australia Act 1976 (Cth) – whether a subsequently filed determination application constitutes an abuse of process – whether the applicant unduly delayed pursuing their rights and interests over the claim area – where the subsequent application overlaps another claim application – application dismissed
Legislation: Federal Court of Australia Act 1976 (Cth)
Native Title Act 1993 (Cth)
Property Law Act 1969 (WA)
Federal Court Rules 1979 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320
Allen on behalf of the Nyamal People #1 v State of Western Australia [2019] FCA 1570
Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169; [2002] FCA 559
Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390
Celestino v Celestino [1990] FCA 449
Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158
Dawson v Great Central Railway [1919] 88 LJKB 1177
Eaton on behalf of the Nyamal People #10 v State of Western Australia [2019] FCA 1571
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369
In the matter of HIH Insurance Limited (in liquidation) [2015] NSWSC 790
Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc [2019] FCA 526
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
O’Connor on behalf of the Palyku People v State of Western Australia [2019] FCA 330
Orr v Ford (1989) 167 CLR 316
Singh v De Castro [2017] NSWCA 241
Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 34
Heydon JD, Cross on Evidence (12th ed, LexisNexis, 2019)
Date of hearing: 19 and 20 June 2019 Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 274 Nyamal Applicant’s interlocutory application Counsel for the Nyamal Applicants: Mr T Keely SC and Mr J Edwards Solicitor for the Nyamal Applicants: Arma Legal Solicitor for the State of Western Australia: Mr G Ranson and Ms A Warren of State Solicitor’s Office Palyku Applicant’s interlocutory application Counsel for the Palyku Applicants: Mr V Hughston SC and Ms T Jowett Solicitor for the Palyku Applicants: Cross Country Native Title Service Solicitor for the State of Western Australia: Mr G Ranson and Ms A Warren of State Solicitor’s Office Table of Corrections 2 April 2020 In [57], “Dr David Martin” has been replaced with “Dr Richard Martin” ORDERS
WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 26 of 2019
WAD 289 of 2018
WAD 482 of 2018
WAD 483 of 2018IN THE MATTER OF the Nyamal Palyku Proceeding, constituted pursuant to orders made on 31 August 2018
KEVIN CHARLES ALLEN and others (NYAMAL #1)
Nyamal #1 Applicant
DORIS EATON and others (NYAMAL #10)
Nyamal #10 Applicant
TAMMY O’CONNOR and others (PALYKU)
Palyku Applicant
MAVIS WESTERMAN and others (NYAMAL OVERLAP CLAIM)
Nyamal Overlap ApplicantMAVIS WESTERMAN and others (NYAMAL OVERLAP #2 CLAIM)
Nyamal Overlap #2 ApplicantKEVIN STREAM and others (PALYKU #2)
Palyku #2 Applicant
STATE OF WESTERN AUSTRALIA & ORS
Respondents
JUDGE:
REEVES J
DATE OF ORDER:
27 March 2020
THE COURT ORDERS THAT:
1.The Palyku application filed on 10 April 2019 is dismissed.
2.The Nyamal application filed on 20 February 2019 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
REEVES J:
INTRODUCTION
More than 20 years ago, a dispute arose between the Palyku People and the Nyamal (also known as “Njamal”) People with respect to certain overlaps that existed between the areas of land they had each claimed in a number of native title claims they had then recently lodged with the National Native Title Tribunal (the Tribunal). All of the land to which those claims related is located in the Pilbara region in the north of Western Australia. The overlap areas in question were situated in the general vicinity of the southern boundary of the Nyamal claim area and the northern boundary of the Palyku claim area.
Following unsuccessful attempts by the Tribunal to mediate the dispute and intensive case management in this Court, Barker J made orders on 22 September 2017 which divided the claim areas of the then remaining claims into three parts: the Nyamal People’s claim area (the Nyamal #1 claim), the Palyku People’s claim area (the Palyku claim – which later became the Palyku #1 claim to distinguish it from the subsequently filed Palyku #2 claim) and the remaining overlap area which surrounded the town of Nullagine (the Nullagine Overlap Area). At that time, the expectations were that the first two parts would proceed to consent determinations and the third part would be determined as a separate question. Those expectations were thwarted in 2018 when, among a number of other things, the authorised applicant of the Palyku People (the Palyku Applicant) filed a new claim (the Palyku #2 claim) which overlapped a further one third, approximately, of the Nyamal #1 claim area.
In early 2019, the authorised applicant of the Nyamal People in the Nyamal #1 claim (the Nyamal Applicant) filed the first of the present applications. It seeks to have the Palyku #2 claim dismissed as an abuse of process relying, in part, on an agreement allegedly made in 2001. Seven weeks later, the Palyku Applicant filed the second of the present applications. It seeks leave to withdraw certain admissions made in a statement of agreed facts that was signed and filed in December 2017 pursuant to the September 2017 orders made by Barker J mentioned above. These two applications were heard sequentially with the latter proceeding first. For that reason, I will deal with that application first in these reasons. Before proceeding to do so, it is convenient to describe the lengthy and complex procedural history to these claims and some other factual background which is pertinent to the Palyku Applicant’s application.
FACTUAL BACKGROUND
The early history of the claims
Most of the early history of the Nyamal #1 claim and the Palyku claim (excluding the Nullagine Overlap Area) has been recorded in the reasons for the consent determinations that have recently been made in respect of those claims. It is therefore convenient to extract those histories from those reasons.
The early history of the Nyamal #1 claim
In the reasons for the Nyamal #1 consent determination ([2019] FCA 1570), the early history of that claim was recorded in the following terms (at [4]–[10]):
4The present Nyamal Application [the Nyamal #1 claim] results from the combination of nine separate native title determination applications made by the Nyamal People. They were:
(a)Nyamal #1 (WC 1995/031, WAD 6028/1998) lodged on 7 August 1995;
(b)Nyamal #2 (WC 1996/056, WAD 6093/1998) lodged on 24 May 1996;
(c)Nyamal #3 (WC 1996/112, WAD 6137/1998) lodged on 9 December 1996;
(d)Nyamal #4 (WC 1996/115, WAD 6139/1998) lodged on 9 December 1996;
(e)Nyamal #5 (WC 1996/117, WAD 6141/1998) lodged on 30 December 1996;
(f)Nyamal #6 (WC 1997/008, WAD 6145/1998) lodged on 3 February 1997;
(g)Nyamal #7 (WC 1997/034, WAD 6165/1998) lodged on 21 May 1997;
(h)Nyamal #8 (WC 1997/042, WAD 6172/1998) lodged on 9 June 1997; and
(i)Nyamal #9 (WC 1997/045, WAD 6174/1998) lodged on 26 June 1997.
5All of these applications were lodged with the National Native Title Tribunal (NNTT) pursuant to s 61 of the NTA as it stood (the old Act) prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the Amendment Act). They were all subsequently notified by the Native Title Registrar (Registrar) pursuant to s 66 of the old Act. Under the transitional provisions of the Amendment Act, all nine applications were taken to have been made to the Federal Court and any notifications given by the Registrar pursuant to s 66 of the old Act were taken to be for that application and the same people were to be parties (see the table at Schedule 5, Part 3, Item 6 of the Amendment Act).
6Nyamal applications #1 – #8 were, in effect, small polygon claims within (or in the case of the Nyamal #8 application, outside) of the boundary of the present Nyamal Application. The boundary of the Nyamal #9 application was larger than, but closely resembled, the boundary of the present Nyamal Application and was lodged over the entire area of land and waters that the Nyamal People claimed were their traditional lands.
7Accordingly, by order made on 19 March 1999, the Nyamal #1 application was amended so that it included Nyamal applications #2 – #9. It was subsequently entered on the Register of Native Title Claims on 3 June 1999.
8On 25 May 2006, leave was granted to amend the application to reduce the boundary of the claim area so that certain overlaps with the Ngarla (WAD 6185 of 1998), the Nyiyaparli (WAD 6280 of 1998), the Kariyarra (WAD 6196 of 1998), the Nyangumarta (WAD 6281 of 1998) and the Palyku Application (WAD 6287 of 1998) native title determination applications were either removed entirely or reduced.
9Over the years since 2006, a number of further amendments have been made to the application, including changes to the constitution of the Nyamal Applicant and the claim group description.
10By order of the Federal Court dated 15 January 2019, the Nyamal Application was given a new electronic court file proceeding number WAD 20 of 2019.
While it does not directly affect the present applications, for context and clarity, it is also worth mentioning a further Nyamal claim that was filed with the Court in May 2000 (the Nyamal #10 claim). It related to an area to the north west of the Nyamal #1 claim area. Its history was recorded in the reasons for the consent determination that was made concurrently with the Nyamal #1 consent determination as follows ([2019] FCA 1571 at [4]–[5] and [14]):
4The Nyamal #10 Application was filed with the Court under s 61 of the NTA on 25 May 2000. It was subsequently entered on the Register of Native Title Claims on 7 July 2000. It was then notified by the Registrar pursuant to s 66 of the NTA. The notification period under s 66 ended on 17 April 2001.
5When it was filed, the Nyamal #10 Application overlapped native title determination application WAD 82 of 1998 (Warrarn Application). The application itself was then subsequently overlapped by a portion of native title determination application WAD 77 of 2005 (Ngarla #2 Application).
…
[The resolution of those overlap claims is recorded at [6]–[13] of [2019] FCA 1571, the end result of which was that “[a]ccordingly, from that date [3 October 2014] the Nyamal #10 Application was no longer overlapped by any other native title determination application” ([2019] FCA 1571 at [13]).]
14By order of the Federal Court dated 16 January 2019, the Nyamal #10 Application was given a new electronic court file proceeding number WAD 26 of 2019.
It should be noted that there is no overlap between this Nyamal #10 claim and the Palyku #2 claim filed in 2018.
The early history of the Palyku claim
The early history of the Palyku claim is set out in the reasons for the consent determination relating to that claim (Part A of the claim: see [19(a)] and [19(f)] below) as follows ([2019] FCA 330 at [3]–[9]):
3… The present proceeding (WAD 23 of 2019) comprises a part of two proceedings (WAD 6250 of 1998 and WAD 6287 of 1998), both of which were made under the NTA as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the 1998 Act).
4Douglas and Lindsay Yuline lodged the claim relating to WAD 6250 of 1998 with the National Native Title Tribunal (the NNTT) on 15 June 1998. It was a polygon claim over a small area of the Woodstock reserve (Reserve 22627). It was lodged in response to a future act notice.
5The claim relating to WAD 6287 of 1998 was lodged with the NNTT on 29 September 1998. It was a claim for the whole of the traditional lands and waters of the Palyku People. It included the area claimed in proceeding WAD 6250 of 1998 mentioned above.
6As a result of the amendments to the NTA made by the 1998 Act, both of these claims were deemed to have been filed in the Federal Court of Australia. Furthermore, any notifications that had been given by the Native Title Registrar (the Registrar) pursuant to s 66, in its form prior to the amendments made by the 1998 Act, were taken to apply to the proceedings and the parties to them (see the table at Schedule 5, Part 3, Item 6 of the 1998 Act).
7By an order of this Court made on 31 March 1999, proceedings WAD 6250 of 1998 and WAD 6287 of 1998 were combined and thereafter the two proceedings continued as proceeding WAD 6287 of 1998 (the combined Palyku Application). Moving forward approximately 20 years, the latter proceeding was given a new electronic court file proceeding number WAD 23 of 2019 on 14 January 2019.
8Returning to 1999, on 21 April, the combined Palyku Application was referred to the Registrar for consideration under s 190A of the NTA (commonly known as the registration test). Upon being satisfied that it passed that test, the Registrar entered the combined Palyku Application on the Register of Native Title Claims on 2 August 1999.
9The Registrar then notified the combined Palyku Application under s 66 of the NTA. The notification period under s 66 ended on 16 August 2000.
The subsequent joint history of the claims
On 30 June 1999 and 7 September 2000, the Nyamal #1 and Palyku claims were referred by the Court to the Tribunal to mediate several disputed issues, including that mentioned above concerning the overlap areas between the two claims. As is also mentioned above, in 2006, those overlap areas were reduced to one area which has since come to be described as the Nullagine Overlap Area. That area comprises approximately 48.8 square kilometres. On 3 August 2012, Barker J ordered that that mediation should cease and the proceedings were then referred for intensive case management. Since that referral, the two Nyamal claims and the Palyku claim have been so managed by a Registrar of the Court. One outcome of that case management process was that, on 2 May 2017, the Nyamal #1 Applicant and the Palyku Applicant filed an agreed statement of facts, issues and contentions.
The 22 September 2017 orders
On 22 September 2017, following a number of further case management hearings before a Registrar, Barker J made programming orders in the claims which were directed, in part, to determining the issue concerning the Nullagine Overlap Area. By those orders, that issue was to be determined “separately from any other question in each of proceedings WAD6028/1998 [Nyamal #1] and WAD6287/1998 [Palyku claim]”. The separate question to be so determined was as follows (Order 2):
Are native title rights and interests (as defined in s 223 of the Native Title Act) held in the Overlap Area by the Palyku native title claim group or by the Njamal native title claim group, or by both?
(Emphasis removed)
The expression “Overlap Area” was defined in the orders to mean (Order 1(a)):
Overlap Area means the land and waters which are covered by both the Nyamal native title claim (WAD6028/1998) [the Nyamal #1 claim] and the Palyku native title claim (WAD6287/1998) [the Palyku claim], as depicted on the map annexed to these orders;
As can be seen from the map below which was annexed to the orders, the “Overlap Area” was the Nullagine Overlap Area mentioned above:
The orders contained a program to achieve a hearing of this separate question and provided (Order 32):
The separate question be listed:
(a)for hearing of the evidence of Aboriginal or other lay witnesses on country in Nullagine for five days from a date to be fixed in September 2018; and
(b)the hearing of evidence of expert witnesses in Perth for two days on a date to be fixed after the filing of any supplementary expert reports.
Importantly for the purposes of this application, those orders also included the following under the heading “Statement of Agreed Facts” (Orders 9 and 10):
By 24 November 2017, the Participating Parties are to confer with a view to agreeing facts in respect of the following issues:
(a)the existence of a Palyku society and a Njamal society;
(b)the possession of rights and interests by each society under traditional laws and customs;
(c)the connection of the society to land or waters by those laws and customs;
(d)the holding of those rights and interests in respect of their respective claim areas excluding the Overlap Area.
By 1 December 2017, the Applicant in the Palyku native title claim (WAD6287/1998) is to file and serve a Statement of Agreed Facts setting out those facts which are agreed by the Participating Parties following the conferral provided for in order 9.
The expression “participating parties” was defined in the orders to mean (Order 1(c)):
Participating Parties means the Applicant in each of the Nyamal native title claim (WAD6028/1998) and the Palyku native title claim (WAD6287/1998), the First Respondent to each claim, and any Participating Respondent.
It was agreed at the hearing of the present applications that there were no participating respondents. Accordingly, the participating parties were limited to the Nyamal Applicant, the Palyku Applicant and the State of Western Australia.
The December 2017 SAF
On 14 December 2017, about two weeks later than was required by the abovementioned orders, the Palyku Applicant filed the Statement of Agreed Facts which is the subject of its present application (the December 2017 SAF). That document commenced with a preliminary section as follows:
A.This document sets out those facts which are agreed by the Participating Parties for the purposes of these proceedings pursuant to order 10 of the orders dated 22 September 2017.
B.In this document:
(a)the Palyku Applicant means the Applicant or Applicants in the Palyku native title claim (WAD 6287/1998) at the relevant time;
(b)the Nyamal Applicant means the Applicant or Applicants in the Njamal (also known as ‘Nyamal’) native title claim (WAD 6028/1998) at the relevant time;
(c)Palyku Country means all of the land and waters covered by the Palyku native title claim (WAD 6287/1998) other than the Overlap Area;
(d)Nyamal Country means all of the land and waters covered by the Njamal (also known as ‘Nyamal’) native title claim (WAD 6028/1998) other than the Overlap Area; and
(e)defined terms otherwise have the meanings set out in order 1 of the orders dated 22 September 2017.
Thereafter, eight facts were set out regarding each of the Palyku People and the Nyamal People. The particular paragraphs of that statement to which this application relates appear in the agreed facts relating to the Nyamal People. They are as follows ([12]–[16]):
12.The Nyamal [P]eople constitute a society in that the Nyamal [P]eople are a body of persons united in and by their acknowledgement and observance of a body of traditional law and customs.
13.The Nyamal [P]eople have constituted a society in Western Australia continuously since before the assertion of British sovereignty in Western Australia in 1829.
14.The Nyamal [P]eople:
(a)possess communal native title rights and interests in Nyamal Country under the traditional laws acknowledged and the traditional customs observed by the Nyamal [P]eople; and
(b)have a connection with Nyamal Country by their traditional laws and customs.
15.The Nyamal Applicant asserts that the Nyamal [P]eople:
(a)possess communal native title rights and interests in the Overlap Area under the traditional laws acknowledged and the traditional customs observed by the Nyamal [P]eople; and
(b)have a connection with the Overlap Area by their traditional laws and customs.
16.The parties agree that if the Nyamal Applicant’s assertion in paragraph 15 is accepted by the Court, then the Nyamal [P]eople possess the same communal native title rights and interests in the Overlap Area as the Nyamal [P]eople possess in Nyamal Country.
Since [15(16)] above is contingent on the assertion in [15(15)] above, the Palyku Applicant does not now seek to withdraw the statements in either of those paragraphs. Further, while it does seek to withdraw the statements in [15(12)] and [15(13)] above, its primary concern is the statement in paragraph [15(14)].
Various new sets of orders made in 2018
The Nyamal consent determinations (Nyamal #1 and Nyamal #10) were scheduled to take place on 5 April 2018. They did not proceed because, on 13 March 2018, Barker J ordered that Ms Selina Ali be joined as a respondent party in those proceedings (see Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320). One of the central issues raised by that joinder application was the composition of the Nyamal native title claim group (see [18] Order 5(b)(i) below).
On 17 May 2018, Barker J vacated the orders he made on 22 September 2017 and made a new set of orders. The rationale for that set of orders was recorded in a set of introductory notes to the orders as follows:
THE COURT NOTES THAT:
1.Each of the Nyamal #1 native title claim (WAD6028/1998), the Nyamal #10 native title claim (WAD6003/2000) and the Palyku native title claim (WAD6287/1998) is a native title determination application which has been before the Court for a considerable period of time.
2.Each of the parties to the proceedings has an obligation pursuant to s 37N to conduct the proceedings in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth).
3.Significant progress has been made between the parties regarding resolution of the proceedings by way of agreement, however there apparently remain a number of issues in dispute in relation to each of the proceedings.
4.Attempts by the parties to resolve the remaining issues apparently in dispute without proceeding to hearing have to date been unsuccessful. Although the parties are encouraged to continue these discussions and negotiations, the Court has formed the view it is necessary for the remaining issues in dispute to be programmed for hearing.
5.The Court has formed the view that final hearings are required in the following order:
(a)issues regarding extinguishment and other interests, including the Disputed Palyku Tenures, which are in dispute in relation to the Palyku claim (WAD6287/1998) and the Overlap Area (Nyamal Palyku Extinguishment Hearing);
(b)issues regarding connection which are in dispute in relation to the:
(i)Nyamal Proceedings (WAD6028/1998 and WAD6003/2000) which the Court understands concern the proper composition of the native title holding group; and
(ii)Nyamal #1 (WAD6028/1998) and Palyku (WAD6287/1998) proceedings regarding connection to the Overlap Area,
(together, the Nyamal Palyku Connection Hearing).
6.Any further negotiations or discussions between the parties aimed at resolving the issues in dispute, including mediation, is to occur in parallel to the preparation for and conduct of hearings of the issues on the basis that further delay in these proceedings is not consistent with s 37M of the Federal Court of Australia Act 1976 (Cth).
The orders which followed included orders to the following effect:
(a)dividing the Palyku claim into two parts: Palyku Part A and Palyku Part B (Order 11);
(b)providing for the Palyku Part B claim, the Nyamal claims and any native title determination application anticipated to be filed by Ms Ali, to be heard together (defined under Order 7(g) as “the Nyamal Palyku Hearing”, but it is unclear how that definition relates to the two hearings mentioned in note 5 at [18] above) (Order 12);
(c)requiring the parties to engage in a process to identify the issues in dispute with respect to the Nyamal Palyku Hearing (Orders 20 to 24);
(d)fixing the Nyamal Palyku Hearing for two days on a date after 14 December 2018 (Order 25) and programming orders to achieve that hearing (Orders 26 to 32);
(e)separately fixing a hearing in the Nyamal Palyku Connection Hearing after 19 April 2019 (Order 33) and programming orders to achieve that hearing (Orders 34 to 59); and
(f)providing for Part A of the Palyku claim to proceed to a consent determination on a date to be fixed in the week beginning 8 October 2018 (Order 60).
On 28 June 2018, a new claim was filed which overlapped the whole of the Nyamal #1 and Nyamal #10 claims. It is referred to as the Nyamal Overlap claim. Ms Ali and Ms Westerman, who were both mentioned in the joinder application that Barker J determined in March 2018 (see at [17] above), are involved with this claim.
By 31 August 2018, the Palyku Applicant had confirmed its intention to file a new claim over the southern portion of the Nyamal #1 claim area. As well, the applicant in the Nyamal Overlap Claim had indicated that it intended to file a further claim which may overlap a part of the area of the Palyku #2 claim. Finally, the Nyamal Applicant had indicated that it may apply to summarily dismiss the Palyku #2 claim once it was filed. Accordingly, on that date, Barker J made a further new set of orders, which included the following:
(a)an order vacating the orders made on 17 May 2018 (Order 2);
(b)an order similar to Order 11 of the orders of 17 May 2018 (see [19(a)] above) dividing the Palyku claim into Parts A and B (Order 3);
(c)an order which expanded the proceeding, defined to mean the Nyamal Palyku Proceeding (Order 1(j)), to include the anticipated Palyku #2 claim and the Nyamal Overlap #2 claim mentioned above (Order 4);
(d)an order providing for the following question to be decided separately in the Nyamal Palyku Proceeding (the Separate Question) (Order 5):
But for any question of extinguishment of native title, who are the persons (if anyone) holding the native title rights and interests (as defined in s 223 of the Native Title Act) in the Nyamal Palyku Proceeding Area.
(Emphasis in original)
The Nyamal Palyku Proceeding Area was defined in the orders to mean “the land and waters of the Nyamal Palyku Proceeding being the land and waters described in order 4 below” (Order 1(k)).
(e)an order providing for the anticipated claims mentioned above to be filed by 29 October 2018 (Order 11) and an order requiring any application by the Nyamal Applicant to summarily dismiss (howsoever framed) the anticipated Palyku #2 claim, or the anticipated Nyamal Overlap #2 claim, to be filed on or before 19 November 2018 (Order 14);
(f)orders in similar terms to Orders 20 and 21 of the 17 May 2018 orders (see [19(c)] above) requiring the parties to identify the issues in dispute in relation to the separate question (Orders 16 to 18);
(g)a set of programming orders directed to conducting a hearing of the separate question on a date to be fixed after 29 April 2019 (Orders 19 to 44); and
(h)finally, an order requiring the Palyku Applicant to file a minute of proposed consent determination on or before 18 February 2019 (Order 46).
In compliance with Order 11 of the above orders (see [21(e) above]), the Palyku #2 claim and the Nyamal Overlap #2 claim were both filed on 29 October 2018. The Nyamal Overlap #2 claim was filed by and on behalf of the same claimants as the Nyamal Overlap application which was filed on 28 June 2018. The Nyamal Overlap #2 claim overlaps with a portion of the Palyku #1 application area, but not with any of the Nyamal #1 application area. It is also worth noting at this point that, according to an affidavit made by Mr John Edwards, the Nyamal Applicant’s lawyer, the initial Palyku #1 claim comprised an area of 9,497.01 square kilometres, whereas the Palyku #2 claim comprises a larger area of 10,308.48 square kilometres. He also claims that the extent of the overlap between the Palyku #2 claim and the Nyamal #1 claim is “very substantial”.
The Nyamal Applicant did not file any application to summarily dismiss either of these anticipated claims in compliance with Order 14 of those orders (see [21(e)] above).
On 3 December 2018, orders were made amending the orders of 31 August 2018 and fixing the hearing of the lay evidence in respect of the separate question for a period of 20 days commencing 27 May 2019. Further amendments were made to those orders on 21 December 2018.
The origins of the present applications
On 16 January 2019, the parties filed a joint Statement of Facts and Issues in accordance with Order 17 of the 31 August 2018 orders as amended on 21 December 2018 (see [21(f)] above). At [47]–[50] of that document, the parties set out their position with respect to the “abuse of process” issue (see at [74]–[75] below). The process for dealing with these competing contentions was then agitated at a case management hearing which was held on 31 January 2019. Subsequently (on 13 February 2019), a set of orders was filed which reflected the discussions at that hearing. Those orders included the following:
(a)orders vacating most of the outstanding orders made on 31 August 2018, the amendments thereto made on 3 December 2018 and the further amendments thereto made on 21 December 2018 (Orders 5 to 7);
(b)an order requiring the Palyku Applicant to file its present application to withdraw any admission it purportedly made in the Statement of Agreed Facts filed 14 December 2017 (Order 8);
(c)a series of orders requiring the various issues in dispute between the parties to be mediated (Orders 9 to 14);
(d)an order requiring the Nyamal Applicant to file its present application to permanently stay, or dismiss, the Palyku #2 application on the ground that it is an abuse of process (Order 15); and
(e)a set of programming orders to achieve a hearing of those applications once filed (Orders 16 to 22).
The Nyamal Applicant filed its application on 20 February 2019. The orders sought in it are set out at [72] below. That application is addressed later in these reasons. The application presently under consideration, the Palyku application, was filed on 10 April 2019. The orders sought in it are set out at [45] below.
On 12 March 2019, a consent determination was made with respect to the Palyku Part A claim at Wild Dog Creek in the north of Western Australia.
Similarly, the Nyamal #1 claim (excluding the areas of the Nullagine Overlap and the Palyku #2 claim) and the Nyamal #10 claim proceeded to consent determinations on 24 September 2019, at Shaw River, near Port Hedland in the north of Western Australia. This followed an agreement reached with the Nyamal Overlap Applicant in February 2019.
YMAC’s role in the Nyamal and Palyku claims
Finally, it is necessary to provide some details of the Yamatji Marlpa Aboriginal Corporation (YMAC), its role in the Nyamal and Palyku claims and how it came to sign the December 2017 SAF. YMAC is a native title representative body established under Part 11 of the Native Title Act 1993 (Cth) (the NTA). To avoid confusion, it should be noted that YMAC is sometimes referred to by the name of its constituent body, Pilbara Native Title Services (PNTS). Until May 2016, it acted for both the Nyamal Applicant and the Palyku Applicant in connection with their respective claims. It apparently did so in discharge of its facilitation and assistance functions under s 203BB(4) of the NTA.
On 26 May 2016, YMAC filed a notice with the Court that it had ceased to act for the Nyamal Applicant.
At about the same time, McCullough Robertson Lawyers began acting for the Nyamal Applicant in YMAC’s place.
On 19 April 2018, that firm, in turn, filed a notice with the Court that it had ceased to act for the Nyamal Applicant and it was replaced by Arma Legal, whose representation continues.
Despite having acted for both parties to that time, YMAC continued to act for the Palyku Applicant after May 2016. During that period, Mr Michael Meegan was the Principal Legal Officer of YMAC. On 27 February 2018, Mr Meegan sent a letter to the members of the Palyku claim group. That letter was headed “POTENTIAL NEW PALYKU CLAIM EXTENDING OVER THE NORTHERN BOUNDARY (CORUNNA DOWNS)”. Since this letter is significant to a number of the contentions of the parties in the present application, it is appropriate to set it out in full. In it, Mr Meegan said:
I am writing to you about the Palyku lodging a potential new native title claim over the northern boundary to include the area around Corunna Downs.
As you are aware, the northern boundary of your native title claim WAD 6287 of 1998 shares a border with the southern boundary of the neighbouring Njamal native title claim WAD 6028 of 1998.
However, I understand that some members of the Palyku claim group hold the view that the existing northern boundary of the Palyku native title claim should extend further into the southern boundary of the Njamal native title claim, so that it includes the area around Corunna Downs.
I also understand that this view is held because some Palyku claim group members have a long association with the Corunna Downs area, through having been born at Corunna Downs and/or having lived at Corunna Downs and/or they have relatives who are buried at Corunna Downs.
You may recall that the question of lodging a potential new claim over the northern boundary area was discussed at a community meeting held on 18 April 2016. At that meeting we advised you that YMAC did not consider there to be sufficient anthropological evidence to support the lodging of a new claim over the northern boundary area.
Having said that, it is recognised that Palyku family members hold knowledge of the Corunna Downs area. However, unfortunately it is both our view and that of the research anthropologists involved with the Palyku native title claim that this knowledge alone is not sufficient evidence of Palyku’s traditional connection to the area and would be unsuccessful in meeting the high degree of evidence required under the Native Title Act.
Consequently, whilst YMAC has received no formal instructions from the Palyku applicant to prepare and lodge a new claim over the northern boundary area, I am writing to advise you that YMAC is not able to provide assistance to the Palyku claim group in the event the Palyku decide to proceed with the lodging of a new claim over the northern boundary area.
More importantly, please note that the Njamal native title claim is scheduled to be granted a determination of native title in approximately April 2018 and this will include the area around the Corunna Downs. Further, once a determination of native title is granted, it will not be possible for any other native title claim to be lodged over this area.
A Palyku community meeting is scheduled for Wednesday, 28 March 2018, and we can discuss any questions you have in relation to this at that meeting. However, if you have any questions In the meantime, you can contact Amy Usher on 9268 7000 who will be happy to discuss this with you.
(Emphasis added)
As is already mentioned above, contrary to the anticipation mentioned in the penultimate paragraph of Mr Meegan’s letter above, the consent determination in respect of the Nyamal claims did not proceed in April 2018. However, from about March 2018, the Palyku Applicant took steps to find a new lawyer to act for it in relation to the proposed Palyku #2 claim. It was eventually successful in retaining the services of an organisation called Cross Country Native Title Services. By August 2018, the possibility of such a change of lawyers acting for the Palyku Applicant was anticipated in Order 12 of the orders made by Barker J on 31 August 2018 as follows:
In the event that a Palyku #2 Application is filed with the Court, the applicant in the Palyku Application and the applicant in the Palyku #2 Application must, within one week of the filing of the Palyku #2 Application, file a notice:
(a)jointly nominating one legal representative who will have carriage of both Palyku Part B and the Palyku #2 Application for the purpose of the Nyamal Palyku Proceeding; and
(b)including the relevant details for that legal representative (including their name, address for service and listing an email address).
Consistent with the above order, on 5 November 2018, Cross Country filed a notice that it acted for the Palyku Applicant in Part B of the Palyku #1 claim and that it acted for the Palyku Applicant in the Palyku #2 claim. In the meantime, YMAC had continued to act for the Palyku Applicant in relation to the Palyku claim and, after Cross Country filed its notice of acting as mentioned above, it continued to act for the Palyku Applicant in relation to Part A of that claim (by then entitled the Palyku #1 claim) until at least the time of the consent determination, which, as is mentioned above, occurred in March 2019.
According to an affidavit made in support of this application by Ms Sophie Kilpatrick, a legal practitioner and director of Cross Country, she had some difficulty during 2018 obtaining the Palyku Applicant’s files from YMAC. In the end result, she was not able to obtain all those materials until on or about 6 March 2019. However, in the meantime, she was provided with some documents in stages on 26 November 2018, 6 December 2018 and from 6 February 2019.
The signing of the December 2017 SAF
The December 2017 SAF at the centre of the present application was signed shortly before it was filed. It was signed by Mr Greg Young, a lawyer employed by YMAC. Mr Young was, at that time, working under the supervision of Mr Meegan, who, as mentioned above, was the Principal Legal Officer of YMAC.
In or about mid-2018, during the early stages of Cross Country’s involvement in the nascent Palyku #2 claim and before it filed its notice of acting mentioned above, Ms Kilpatrick attended two case management hearings in an amicus curiae capacity to assist the Court. One of those case management hearings occurred on 24 July 2018 and the other occurred on 6 August 2018. At the second hearing, Ms Kilpatrick was alerted to the existence of the December 2017 SAF. That occurred when the State’s legal representative, Mr Griff Ranson, stated that such a document had been filed on behalf of the Palyku Applicant and that it included an admission that the Nyamal claim group held native title over all of the Nyamal #1 claim area, except for the Nullagine Overlap Area.
Immediately after the 6 August 2018 hearing, Ms Kilpatrick contacted YMAC to gain an understanding of the circumstances in which the December 2017 SAF had been signed and filed. This matter was of importance because, at that time, Ms Kilpatrick had instructions from the Palyku Applicant to prepare for, and convene, a meeting of the Palyku claim group to consider the authorisation of the Palyku #2 claim. One of the questions Ms Kilpatrick asked of YMAC in that initial correspondence was whether YMAC had instructions from the Palyku Applicant to sign and file the December 2017 SAF.
In response, on 9 August 2018, Mr Cameron Trees, the Deputy Principal Legal Officer of YMAC, sent a letter to Ms Kilpatrick explaining the context in which the December 2017 SAF came into existence. In that letter, Mr Trees said, among other things, that: it “was filed for the purposes of the separate proceeding [concerning the Nullagine Overlap Area] only”; the orders “concerning the separate proceeding [had] been vacated”; and that it “[did] not apply in any broader context”. He also claimed that the general instructions YMAC obtained during the Palyku claim group meetings on 18 April 2016 and 31 August 2017 to prosecute the Palyku People’s claim over the Nullagine Overlap Area were sufficient to authorise the signing and filing of the December 2017 SAF.
On 14 August 2018, Ms Kilpatrick wrote to all of the parties to the Nyamal Palyku Proceeding to ascertain whether they agreed with the assertion in Mr Trees’ letter, in particular, his claim that the December 2017 SAF “was agreed in the context of a separate proceeding”. In its response, the lawyers for the Nyamal Applicant stated that they did not agree.
On 18 September 2018, the Palyku claim group met and passed a resolution confirming that it had not authorised YMAC to make the admissions in the December 2017 SAF.
Following that meeting, Mr Trees wrote a further letter to all the parties dated 3 October 2018, in which he again claimed that the “Palyku never intended to make any general admission as to the extent of Nyamal native title rights and interests”; and that “the Palyku confirm that they withdraw any and all admissions made by them in agreeing” to the December 2017 SAF. It will be recalled that YMAC was, at this time, still acting for the Palyku Applicant in respect of both Parts of the Palyku claim and that the Palyku #2 claim had not yet been filed.
Finally on this aspect, in the affidavits they filed in support of this application, Mr Fred Stream and Ms Elsa Derschow, two of the four persons who comprised the Palyku Applicant at the time the December 2017 SAF was signed and filed, stated that they were not contacted by YMAC about the contents of that statement before it was filed. They further stated that they would not have instructed their lawyer to agree to that statement if they had been asked. Similarly, Mr Kevin Stream and Mr Walter Stream, both members of the Palyku #2 Applicant, and Mr Terry Jaffrey, a member of the Palyku Working Group, stated in their affidavits that YMAC did not seek instructions from them to sign and file the December 2017 SAF.
THE PALYKU APPLICATION
The orders sought and the relevant Rule
The Palyku Applicant seeks the following orders in its interlocutory application:
1.Pursuant to Rule 16.53 of the Federal Court Rules 2011 (Cth) (the Rules), the Palyku Applicant has leave to amend the pleadings set out in the document titled Statement of Agreed Facts dated 14 December 2017 by deleting paragraphs [12]–[14] and paragraph [16]; and/or in the alternative
2.to the extent that paragraphs [12]–[14] and paragraph [16] in the document titled Statement of Agreed Facts dated 14 December 2017 constitute admissions made by the Palyku Applicant pursuant to Rule 16.07(2) of the Rules, the Palyku Applicant has leave to withdraw such admissions.
Rule 16.53 of the Federal Court Rules 2011 (Cth) (the Rules) provides: “Unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading.” Rule 16.51 does not apply in this instance because it permits a party to amend a pleading once without the leave of the Court before the pleadings close.
Rule 16.07 relevantly provides:
(1)A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.
(2)Allegations that are not specifically denied are taken to be admitted.
…
Both of these rules concern a “pleading”. That expression is defined in exclusionary terms in the dictionary at Schedule 1 to the Rules to mean:
(a) a statement of claim; or
(aa) an alternative accompanying document referred to in rule 8.05; or
(b) a statement of cross claim; or
(c) a defence; or
(d) a reply; or
(e) any pleading after a reply;
but does not include:
(f) an originating application; or
(g) an interlocutory application
(h) a notice of any kind; or
(i) an affidavit.
It follows that rr 16.53 and 16.07(2) are confined to documents that meet the description of a statement of claim, defence, reply, etc above. Even if one were to give a broad meaning to the expression “statement of claim”, putting aside [48(aa)] above which is addressed separately below, I do not consider the December 2017 SAF falls within the terms of this definition. It is not by nature a pleading. It is, as its recital records (see at [14(A)] above), a document which “sets out those facts which are agreed by the Participating Parties”.
As for (aa) of the definition of “pleading” above, r 8.05 relevantly provides:
(1)An originating application seeking relief that includes damages must be accompanied by:
(a)unless paragraph (b) or (c) applies—a statement of claim; or
(b)if a practice note issued by the Chief Justice requires the originating application to be accompanied by an alternative accompanying document—the alternative accompanying document; or
(c)if a practice note issued by the Chief Justice permits the originating application to be accompanied by an alternative accompanying document—the alternative accompanying document or a statement of claim.
(2)An originating application seeking relief that does not include damages must be accompanied by:
(a)unless paragraph (b) or (c) applies—a statement of claim or an affidavit; or
(b)if a practice note issued by the Chief Justice requires the originating application to be accompanied by an alternative accompanying document—the alternative accompanying document; or
(c)if a practice note issued by the Chief Justice permits the originating application to be accompanied by an alternative accompanying document—the alternative accompanying document, a statement of claim or an affidavit.
(Notes omitted)
The “alternative accompanying document” referred to in r 8.05 is therefore a document that is either required, or permitted, by a Practice Note issued by the Chief Justice. In its submissions on this application, the Nyamal Applicant faintly suggested that the December 2017 SAF may fall within the terms of cl 6.2 of the Native Title Practice Note NT-1. Insofar as that part of the Practice Note refers to pleadings, it states that the parties attending the first case management hearing of an application should give careful consideration to:
…
(g)what connection and extinguishment issues are likely to arise in the proceeding;
(h)whether, when and how the matter should be pleaded, and in respect of how: whether by way of statement of issues, facts and contentions, formal pleadings or points of claim and defence;
(i)where relevant, the nature of interests of respondent parties to a proceeding following the ending of the notification period in respect of an application under the NTA;
…
On a generous construction, cl (h) above may implicitly permit an originating application in a native title proceeding, namely the Form 1 (see r 34.103), to be accompanied by a “statement of issues, facts and contentions”. However, even if that is so, I do not consider the December 2017 SAF document answers that description. Quite apart from the fact it did not accompany the originating application, it does not, for the reasons given above, comprise such a statement. Instead, it is confined to setting out the facts which are agreed between the parties.
In this respect, it is instructive to compare the December 2017 SAF document with the other similar documents filed by the parties on 2 May 2017 (see at [8] above) and 16 January 2019 (see at [25] above). The former document is headed “Statement of Facts, Issues and Contentions between the parties’ competing anthropologists”. It then sets out a series of propositions under the headings “Agreed Facts”, “Agreed Contentions” and “Issues”. On its face, that document is of the kind referred to in [51(h)] above. The latter document, the “Statement of Facts and Issues” that the parties filed in January 2019, is structured differently, but achieves essentially the same result. It follows the form of a pleading in that it contains a number of propositions of fact and law which each party either admits, does not admit, or denies. In contrast, the December 2017 SAF document only contains agreed facts. It does not attempt to define the issues in dispute between the parties, much less set out their competing contentions on those issues. For these reasons, I do not consider the December 2017 SAF document falls within the terms of r 16.53 or r 16.07(2).
But that is not an end to the matter. To explain why, it is instructive to go to the Federal Court Rules 1979 (Cth), the Rules of Court in force until 1 August 2011 when the current Rules came into effect. Those Rules contained, in O 13 r 2(1), a general power to amend “any document in [a] proceeding” as follows:
Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
The current Rules do not contain a rule in similar terms. They do, however, contain rules that allow particular documents to be amended. Apart from r 16.53 itself, they include rr 8.21 (amending an originating application), 15.15 (amending a cross-claim) and 36.10 (amending a notice of appeal). Plainly none of these rules applies to the December 2017 SAF. But that does not mean that the Court’s powers to amend are confined to those documents. That is so because the Court’s general powers to amend are contained in Division 1.3 of the current Rules of Court. In particular, r 1.32 provides: “The Court may make any order that the Court considers appropriate in the interests of justice.” In my view, this rule gives the Court ample power to amend, among many other things, the December 2017 SAF provided that it is in the interests of justice to do so. I will therefore proceed to consider the present application on that footing.
The parties’ contentions
There was general agreement between the parties as to the principles applicable to an application to amend a document to withdraw an admission. There was no dispute that the admissions in the December 2017 SAF could be withdrawn with leave and that the overriding consideration was the interests of justice. In that respect, it was agreed that the relevant factors included:
(a)the nature and importance of the admission;
(b)whether it was inadvertently or deliberately made;
(c)the reason for the withdrawal;
(d)the detriment or prejudice that the withdrawal may cause another party; and
(e)whether or not the admission is factually correct.
See Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 at [32], Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390 at [4] and Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals, Inc [2019] FCA 526 at [38].
In support of its application, the Palyku Applicant contended that the admissions made in the December 2017 SAF were limited to the separate question proceeding relating to the Nullagine Overlap Area and that they could not apply to the Palyku #2 claim proceeding, which did not exist at the time those admissions were made. It further contended that the orders requiring that statement to be filed have since been set aside and replaced by a different set of orders. It also contended that YMAC did not have instructions to make the admissions contained in that document and it did not therefore have the authority to do so. Further, it submitted it would suffer significant prejudice if those admissions applied in the Palyku #2 claim and it were not given leave to withdraw them because they would effectively foreclose on it pursuing that claim. In support of this contention, it relied upon the affidavit of Dr Richard Martin, an experienced anthropologist, to submit that it had reasonable prospects of success in that claim.
The Nyamal Applicant made a number of concessions in its written and oral submissions. They included that: YMAC did not seek specific instructions from the Palyku Applicant to make the admissions in the December 2017 SAF and the Palyku Applicant did not specifically instruct YMAC to make those admissions; since around July 2005, certain Palyku People had asserted to YMAC that the boundary between the Nyamal #1 and Palyku claims was incorrectly located and that the Palyku #1 claim should have extended further north; at a meeting of the Palyku claim group on 18 September 2018, those present had resolved to confirm that they had never authorised YMAC to make those admissions on their behalf; the admissions were completely inconsistent with the claims made in the Palyku #2 claim; and in the context of the case management of the Nyamal #1 and Palyku #2 claims since late 2018, there has been no delay on the Palyku Applicant’s part in making its present application.
In its submissions in opposition to the present application, the Nyamal Applicant contended that, while YMAC did not have specific instructions to make the admissions in the December 2017 SAF, it had the implied authority to do so arising from the fact that it was acting for the Palyku Applicant in the Palyku #1 claim. It also relied upon the Full Court decision in Celestino v Celestino [1990] FCA 449 (Celestino) to contend that the Palyku Applicant was required to explain how those admissions came to be made. In this respect, it contended that the Palyku Applicant had not produced any evidence from Mr Young, or anyone else at YMAC, giving that explanation. Further, it contended that the Palyku Applicant had not shown good cause why it should be given leave to withdraw the admissions. This contention, relying upon Celestino, can be rejected at once. That judgment dealt with an application to withdraw an informal admission of liability made by an insurer in a personal injuries proceeding after the assessment of damages trial had proceeded for several days. It is therefore clearly distinguishable on its facts from this matter.
While the Nyamal Applicant did not submit that the Palyku People had no reasonable prospects of success in their Palyku #2 claim, it did contend that there were “questions about the integrity of the claim”. In particular, it contended that the Palyku People had waited until the last possible moment in pursuing their assertions that the boundary between the Nyamal #1 and the Palyku #1 claim was incorrect and that the Palyku #1 claim should extend further north. Finally, it contended that it will suffer prejudice if the Palyku Applicant is given leave to withdraw the admissions in the December 2017 SAF because that will result in still further delay in the balance of the Nyamal #1 application, which is already approximately 20 years old. In particular, it claimed it will incur additional costs in pursuing that claim and the Nyamal People will experience stress and strain as a consequence of the continuing litigation that will ensue.
Consideration and disposition
The admissions continue to have effect
It is convenient to begin by noting that, throughout the hearing of its application, the Palyku Applicant was at pains to emphasise that it was erring on the side of caution, or exercising “manifest caution”, in bringing this application. It contended that was so because the admissions contained in the December 2017 SAF were made pursuant to Court orders that have now been set aside and they were made for the purposes of a quite separate proceeding to the Palyku #2 claim, namely the Nullagine Overlap Area proceeding. In this latter respect, it is important to note that both parties accepted that the admissions were directly inconsistent with the fundamental premise of the Palyku #2 claim. Indeed the Nyamal Applicant went so far as to claim in this application (and its own application considered later in these reasons) that, if the admission were to stand, it would be an abuse of process for the Palyku Applicant to pursue its Palyku #2 claim.
I do not accept the first of the Palyku Applicant’s claims above. The fact that the orders of 21 September 2017 were subsequently set aside by the orders of 17 May 2018 does not, in my view, affect the continuing existence and effect of the admissions made under them. Once those admissions were made, they continue to exist and to have effect according to their terms unless and until they are duly withdrawn. The real question therefore is: what is the effect of these admissions? On that question, I consider the Palyku Applicant has made a valid point in the second of its claims above. That is to say, I consider the admissions were made for the purposes of the separate question proceeding relating to the Nullagine Overlap Area and their effect is limited to that proceeding. My reasons for this conclusion are as follows.
The admissions are only binding in the separate question proceeding
First, the general rule is that formal admissions are only binding for the purposes of the particular proceeding in which they are made (see Dawson v Great Central Railway [1919] 88 LJKB 1177 at 1181–1182 per Swinfen Eady, MR; Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169, [2002] FCA 559 at [51] per Finkelstein J; and In the matter of HIH Insurance Limited (in liquidation) [2015] NSWSC 790 at [45]–[47] per Brereton J). On this aspect, because it deals with the effect of assertions made in pleadings and, as mentioned above, the December 2017 SAF document cannot be regarded as a pleading, I do not consider the principles expressed in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, which was raised by both parties in their submissions, is of assistance in determining this matter.
Secondly, it is clear from the terms of the 22 September 2017 orders that they were expressly confined to the separate question proceeding relating to the Nullagine Overlap Area. In the first place, Order 4 of those orders provided that “[t]he proceedings in respect of the separate question be referred to as the separate proceeding” (emphasis in original). Then Order 2 stated the separate question in terms that confined its compass to the native title rights and interests held in the “Overlap Area”. Finally, that expression was defined in Order 1(a) by reference to the map annexed to the orders. It is clear from that map that the area concerned was one and the same as the Nullagine Overlap Area.
Thirdly, the December 2017 SAF itself is expressed to apply only for the purposes of the separate question relating to the Nullagine Overlap Area. That appears from its heading: “IN THE MATTER OF a separate question pursuant to orders made on 22 September 2017” (capitalisation in original). Additionally, cl A, under the heading “Preliminary”, states that:
This document sets out those facts which are agreed by the Participating Parties for the purposes of these proceedings pursuant to order 10 of the orders dated 22 September 2017.
(Emphasis added)
For these reasons, I consider the admissions contained in the December 2017 SAF document were confined to the separate question proceeding relating to the Nullagine Overlap Area and have no effect in respect of the Palyku #2 claim.
Leave to withdraw the admissions is in the interests of justice
Alternatively, even if I had concluded that those admissions were binding for the purposes of the Palyku #2 claim, I would have concluded that it was in the interests of justice that the Palyku Applicant be given leave to withdraw them. My reasons for this conclusion are as follows.
First, while it is common ground that YMAC (Mr Meegan or Mr Young) did not have specific instructions to make the admissions, I agree with the Nyamal Applicant that it was not necessary for them to have such specific instructions in the circumstances. That is so because, in their respective capacity as the Principal Legal Officer of YMAC and the lawyer on the record representing the Palyku Applicant in the Palyku #1 claim and as the YMAC lawyer performing that function on a day-to-day basis, Mr Meegan and Mr Young had the implied authority to make admissions for the purposes of that proceeding (see Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369 at [17]–[18] per Rares J; Singh v De Castro [2017] NSWCA 241 at [80] per Sackville AJA; and JD Heydon, Cross on Evidence (12th ed, LexisNexis, 2019) at [3165]. In this respect I should record that I have not considered it necessary to consider the matters that arose during the hearing of this matter concerning YMAC’s role having acted for both the Palyku and the Nyamal Peoples, nor whether it was acting as a legal firm throughout, nor whether it was properly discharging its functions as a native title representative body under Part 11 of the NTA, although some of those reasons will be addressed later in these reasons.
However, given the assertions that various members of, and groups within, the Palyku People had made to YMAC over the years since at least 2005 to the effect that they considered that the Palyku People had native title rights and interests in the southern area of the Nyamal #1 claim (reviewed at [148]–[193] below), I do not consider it would be just to fix the Palyku People with the admissions YMAC made on their behalf. That is so because, as mentioned above, if the admissions were to continue to have effect (on the assumption, for present purposes, that they do) they would effectively deprive the Palyku People of the opportunity to pursue the Palyku #2 claim and obtain a determination in respect of those native title rights and interests if they do, indeed, hold them. In this respect, in addition to their constant affirmation of those rights and interests since at least 2005, there is the affidavit of Dr Martin which attests to their existence, at least on a preliminary or prima facie basis. I would add that these matters are, in my view, broadly consistent with the factors set out at [56] above. Put differently, if it became necessary, I consider that the Palyku Applicant would have shown good cause why it should have been given leave to withdraw the admissions contained in the December 2017 SAF.
Finally, while I do not doubt it is genuinely felt, I consider the further delay, additional costs and the continuing stress of the litigation advanced as prejudice by the Nyamal People is outweighed by the prejudice that would be suffered by the Palyku People as described above.
Conclusion on the Palyku application
To sum up, for the reasons set out above, I do not consider the admissions contained in the December 2017 SAF document were binding on the Palyku Applicant or the Palyku People for the purposes of the Palyku #2 claim. Instead, I consider those admissions are binding for the confined purposes of the separate question proceeding in respect of the Nullagine Overlap Area. Alternatively, even if those admissions were binding with respect to the Palyku #2 claim proceeding, I would have concluded that it was in the interests of justice to give leave to the Palyku Applicant to withdraw them.
THE NYAMAL APPLICATION
The orders sought
In its interlocutory application, the Nyamal Applicant sought the following orders:
1.An order that the Palyku #2 Application, insofar as it relates to land and waters that are also the subject of the Nyamal #1 Application, be summarily dismissed pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) or s 31A of the Federal Court of Australia Act 1976 (Cth) on the grounds that it constitutes an abuse of the process of the Court.
2.Alternatively to Order 1, an order that the Palyku #2 Application, insofar as it relates to land and waters that are also the subject of the Nyamal #1 Application, be dismissed or permanently stayed pursuant to the inherent jurisdiction of the Court on the grounds that it constitutes an abuse of the process of the Court.
3.An order that the Palyku #2 Applicant pay the Nyamal #1 Applicant’s costs of the Palyku #2 proceeding.
As the Nyamal Applicant pointed out at the case management hearing held on 31 January 2019, it is not necessary to determine an abuse of process application of this kind prior to the trial of a proceeding. However, because the potential dismissal of the Palyku #2 claim would confine the area of overlap between the Nyamal and Palyku claims and therefore significantly affect the nature and extent of the dispute between the parties, I decided to hear and determine the Palyku application in advance of the trial.
How the issues were raised
Before outlining the contentions of the parties on the Nyamal application and addressing the issues that arise therefrom, it is convenient to describe how those issues were raised in the first place. This matter has already been touched on briefly above (see at [25]). The 31 August 2018 orders as amended required the parties to file a Statement of Facts and Issues. At [47]–[50] of that document, the parties set out, in quite some detail, their positions under the heading “ABUSE OF PROCESS”. The Nyamal Applicant described its position as follows:
47. The Nyamal Applicant and the Nyamal Overlap Applicant say that:
(a)the Separate Question is directed to “native title rights and interests (as defined in s 223 of the Native Title Act)” and therefore raises the question of whether any rights and interests that may be found to exist can or should be recognised in a determination of native title;
(b)any rights and interests that may be found to exist cannot or should not be recognised in a determination of native title, where the commencement or prosecution of that native title determination application constitutes an abuse of the Court’s process.
48.The Nyamal Applicant and the Nyamal Overlap Applicant contend that the commencement and prosecution of the Palyku #2 Application constitutes an abuse of process. This contention is primarily based on the following matters:
(a)the Palyku #2 Application was commenced approximately 20 years after the Palyku Application, which was, over the years, the subject of numerous case management conferences or hearings;
(b)the Palyku #2 Application was commenced at a time when the Nyamal Applications were in an advanced state of negotiation with the First Respondent;
(c)unlike the very small, pre-existing overlap between the Nyamal #1 Application and the Palyku Application, the Palyku #2 Application created a very large overlap with the Nyamal #1 Application;
(d)the Palyku #2 Application was commenced, notwithstanding that in 2001 an agreement about the boundary between Nyamal country and Palyku country was struck between senior Nyamal claimants and senior Palyku claimants in the presence of a number of other regional elders and an anthropologist;
(e)a term of the agreement referred to at (d) above was that the Nyamal representatives agreed to amend their application by significantly reducing the area claimed and the Nyamal Applicant subsequently amended the application accordingly; the area that was thus no longer claimed by the Nyamal People formed and still forms part of the Palyku Application;
(f)by Statement of Agreed Facts filed on 14 December 2017, the Palyku Applicant agreed that the Nyamal [P]eople possess communal native title rights in Nyamal Country under the traditional laws acknowledged and the traditional customs observed by the Nyamal People and have a connection with Nyamal Country by their traditional laws and customs, “Nyamal Country” being defined in substance as all the land and waters covered by the Nyamal #1 Application, other than the Nullagine Overlap Area.
The Palyku Applicant described its position as follows:
49. The Palyku Applicant, in respect of paragraph [47]:
(a) denies sub-paragraph [47(a)]; and
(b) says that:
(i)consistent with paragraphs [2] – [3] of this Statement, the Separate Question is concerned with the identity of persons who hold, or may hold, native title rights and interests, rather than identifying what those native title rights and interests are, or whether such rights and interests are capable of being recognised in a determination of native title;
(ii)if the Nyamal Applicant asserts that the commencement and prosecution of the Palyku #2 Application constitutes an abuse of process, the appropriate remedy was to apply for an order that the Palyku #2 Application be summarily dismissed;
(iii)on 31 August 2018, the Court made orders that any application for summary dismissal be brought by 19 November 2018 and on 3 December 2018, this timeframe was extended to 10 December 2018;
(iv)no application for summary dismissal was brought by any party within the timeframes set by the Court; and
(v)accordingly, paragraphs [47] – [48] ought to be struck from this Statement.
50.Further, or in the alternative to paragraph [49], if paragraphs [47] and [48] are not removed from this Statement, then the Palyku Applicant:
(a)denies that the Palyku #2 Application constitutes an abuse of process;
(b)admits subparagraphs [48(a)] – [48(b)] (but see paragraph [49] above);
(c)admits that the overlap between the Palyku #2 Application and the Nyamal #1 Application is larger than the overlap between the Palyku Application and the Nyamal #1 Application and says that a substantial portion of the Palyku #2 Application does not overlap the Nyamal #1 Application in any way and that a smaller portion of the Palyku #2 Application is unoverlapped by any other application but otherwise denies subparagraph [48(c)] as an assertion of fact;
(d)admits that two (2) Palyku claimants attended a field trip in 2001 (the 2001 field trip) with a number of Nyamal claimants and other regional elders, and that one (1) of those Palyku claimants was senior, but otherwise denies subparagraph [48(d)] and further says that:
(i)no agreement or undertaking was made on behalf of the Palyku People that binds the Palyku People; and
(ii)if any agreement was reached by the participants during the 2001 field trip, it was an agreement as to the participants’ opinions about amendments that ought to be made to the Palyku Application and the Nyamal Application rather than opinions of the extent of Palyku country and Nyamal country;
(e)admits that the Nyamal #1 Application was amended following the 2001 field trip but says that, if such amendment was made consistent with any undertaking made by Nyamal representatives during the 2001 field trip on behalf of the Nyamal People as pleaded at subparagraph [48(d)], then this undertaking has been breached by virtue of the Nyamal Overlap #2 Application, which has been made in respect of lands and waters from which the Nyamal #1 Application was withdrawn;
(f)consistent with subparagraph [50(e)], denies that the Nyamal People have honoured any undertaking they made on the 2001 field trip and denies that the land and waters from which the Nyamal #1 Application was withdrawn is now the subject of the Palyku Application; and
(g)in respect of subparagraph [48(f)]:
(i)says that the Palyku Applicant has never instructed its legal representatives to agree on its behalf that the Nyamal People possess communal native title rights in Nyamal Country under the traditional laws acknowledged and the traditional customs observed by the Nyamal People and have a connection with Nyamal Country by their traditional laws and customs, “Nyamal Country” being defined in substance as all the land and waters covered by the Nyamal #1 Application, other than the Nullagine Overlap Area: and
(ii)denies the Statement of Agreed Facts filed 14 December 2017 has the effect pleaded at this subparagraph.
The issue concerning the Statement of Agreed Facts ([74[48(f)]] and [75[50(g)]] above) has already been disposed of above. As is also mentioned above, the issues raised by [75[49(b)(ii)]]– [75[49(b)(v)]] were disposed of at the case management hearing on 31 January 2019.
The contentions of the parties
There is no dispute between the parties as to the relevant principles applicable to applications founded on abuse of process, or applications for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Act), or r 26.01 of the Rules. On the substantive issues, the basic positions of the parties are set out in the Statement of Facts and Issues above. Those positions were then developed in some detail in their outlines of written submissions.
In summary, the Nyamal Applicant contended that the native title claims that the Palyku People lodged in the late 1990s, which became the Palyku #1 claim, were considered claims by them to the whole of their traditional country. The factors supporting this conclusion, so it contended, included that the senior Palyku People at the time were closely involved in lodging those claims and the boundaries to them were carefully considered before they were lodged. Against this background, the Nyamal Applicant contended that the use of the Court’s processes involved in filing of the Palyku #2 claim in 2018, 20 years after lodging such a well-considered claim, constituted an abuse of process. It also contended that the pursuit of that claim was unjustifiably oppressive to the Nyamal People and/or brings the administration of justice into disrepute. It contended these consequences arose from the lengthy delay that preceded the filing of the Palyku #2 claim, combined with the dilatoriness of the Palyku People, and particularly the Stream brothers, in pursuing that claim. It contended that delay caused the Nyamal People to suffer serious prejudice because of the unavailability of senior, knowledgeable Nyamal witnesses who have since passed away and “the disappointment and distress felt by Nyamal claimants who have had a twenty-year journey towards a determination of native title, only to find at the last minute that this would not happen in respect of a substantial portion of the country that, until very recently, they and they alone had claimed”.
The Nyamal also contended that an agreement was struck between the Palyku and Nyamal participants on the field trip conducted in April 2001 whereby:
(a)“the Nyamal [P]eople agreed to withdraw their southern boundary [of the Nyamal #1 claim] to a line proceeding roughly in an east-south-east direction from the vicinity of Hillside Station to the north-east corner of the Palyku claim, with Hillside Station remaining in the Palyku claim”; and
(b)“the Palyku [P]eople agreed to amend their boundary [of the Palyku #1 claim] to ensure that Nullagine fell within the boundaries of the Nyamal [#1] claim; that is, they agreed to withdraw their claim (approximately a small triangle) bounded by a line dropped from the northern most point of their claim in the vicinity of Nullagine to Garden Pool, due east of their boundary in the vicinity of the Mount Daniel Mine and then north-west (approx.) to the first point”.
In addition to those express terms of this agreement, the Nyamal Applicant contended that there was an implied term that neither party would bring any future native title claim “that proceeds on the basis that the boundary which was agreed in 2001 is incorrect”. It contended that this agreement was endorsed at a meeting of the Palyku Working Group held on 4 May 2001 and was binding on the Palyku People. In respect to the Palyku Working Group, it contended that, because it included four members of the Palyku Applicant, it had the authority to endorse the agreement on behalf of the Palyku claim group. If no such binding agreement was made on behalf of the Palyku People, in the alternative, it contended that there was a “(non-binding) agreement” to the same effect which should be taken into account in assessing whether the filing of the Palyku #2 claim in 2018 constituted an abuse of process.
In response, the Palyku Applicant denied that the Palyku People’s claims, which became the Palyku #1 claim, constituted a “whole of traditional Palyku country” claim. Further, it denied that the conduct of the Palyku claimants in filing the Palyku #2 claim caused unjustifiable oppression to the Nyamal People. Finally, it denied that the agreement as alleged by the Nyamal Applicant had been made during, or as a result of, the 2001 field trip.
In support of the first of these denials, the Palyku Applicant claimed that, from the outset, there were unresolved issues about the boundaries between the Nyamal and Palyku People’s countries within the area that is now covered by the Palyku #2 claim, including places such as Spear Hill, Cooglegong and Bonney Downs. It further contended that, despite their constant reaffirmation of these claims over the years since, they had been unable to persuade YMAC to pursue them. It also claimed that, as a group, they did not have the resources to employ lawyers to pursue their claims independently of YMAC.
As for the 2001 field trip, the Palyku Applicant contended that it was directed to resolving overlaps between the Palyku, the Nyiyaparli and the Nyamal claims and not to the boundaries between Palyku and Nyamal country. It further contended that Mr Pixie Christian was the only senior Palyku person who participated in that trip and he did not have the authority to speak for the Palyku People as a whole. It denied that the agreement alleged by the Nyamal Applicant was made on that trip and that the Palyku Working Group meeting on 4 May 2001 endorsed any such agreement. In the alternative, it contended that, even if an agreement was reached during that trip and even if that agreement was endorsed at that meeting, the meeting was a meeting of the Palyku Working Group and any endorsement was not that of the Palyku Applicant nor, more importantly, the Palyku claim group. Further, it contended that, for any such agreement to be binding on the Palyku People, it would have had to be endorsed by the Palyku claim group. As well, it contended that the fact the Nyamal People have not taken any steps to enforce the terms of the alleged agreement concerning the Nullagine Overlap Area since 2001 supported its non-existence. Finally, it contended that, if the alleged agreement had been made, because it related to an interest in land, s 34(1)(a) of the Property Law Act 1969 (WA) required it to be in writing for it to be enforceable and there is no evidence of any such writing.
In a set of supplementary submissions filed by leave after the hearing, the Nyamal Applicant advanced a number of additional contentions about the authority of the Palyku Applicant and the binding effect of the alleged agreement mentioned above. They included contentions that the Palyku Applicant had the authority under s 62A of the NTA to enter into that agreement on behalf of the Palyku claim group because it was a “matter arising under this Act in relation to the application”. Alternatively, it contended that: the agreement was entered into by the Palyku Working Group, which was, itself, duly authorised by the Palyku claim group; or, alternatively, that the meeting on 4 May 2001 was a meeting of the Palyku claim group (as distinct from the Palyku Working Group); or, alternatively, that the agreement was entered into at a meeting of the claim group prior, but proximate, to 28 October 2003. As well, it contended that the agreement did “not infringe any provision of the NTA”. Finally, it contended that the agreement did not have to take the form of an Indigenous Land Use Agreement (ILUA) under the NTA because the NTA did not require that an agreement between competing native title parties relating to the resolution of overlapping claims must proceed by way of an ILUA.
Furthermore, it can be seen from ss 62(2)(d) to (f) above that an applicant was required to provide detailed information about the native title interests claimed in an application. The corresponding provisions in the original NTA were quite broad requiring only that the applicant swear that he/she “believes that native title has not been extinguished in relation to any part of the area” (s 62(1)(a)(i)). Again it can be readily inferred that it was these provisions that caused the Palyku Applicant to obtain the affidavits from the Palyku elders to which the Nyamal Applicant has referred in support of its contention that the Palyku claims “were considered claims ... to the whole of their traditional country” (see at [91]–[92]).
In short, I consider it was these aspects of the new regime established by the 1998 amendments to the NTA that motivated the Palyku Applicant to take these steps with respect to its claim. It was not a desire to file a claim which described the whole of the Palyku People’s traditional country. Even if that had been the desire, as the observations of Jagot and Mortimer JJ in Fortescue Metals Group at [108] above made clear, that would not, at least in the context of an abuse of process application such as this, have prevented the Palyku People from authorising an applicant to file a later claim to a different or more expanded claim area provided that they genuinely believed they held native title rights and interests in that new area. For these reasons, I do not consider there is any merit in the Nyamal Applicant’s “whole of country” contention. It follows that the second question posed at [87(b)] above must be answered in the negative.
The Unreasonable Delay Question
I turn finally to the third question posed at [87(c)] above: the unreasonable delay question. In advancing their case that the Palyku People had unreasonably delayed in pursuing their rights and interests to the Palyku #2 claim area, the Nyamal Applicant essentially focused on three matters: the 20 year delay in filing the Palyku #2 claim; the alleged dilatoriness of the Palyku People, and particularly the Stream brothers, in pursuing their rights and interests at the heart of that claim; and the delay connected with the failure of the Palyku People to employ private lawyers when they became dissatisfied with the services being provided by YMAC.
On the extent of the Palyku People’s delay, the Nyamal Applicant emphasised that it was a “very great delay” and, with respect to the Palyku #2 claim, it contended that “it could not have been filed any later”. In respect of the Stream brothers, the Nyamal Applicant contended that, until about 2005, they had not been actively involved in any of the Palyku groups pursuing the claims to the Palyku #2 claim area, whether that be the Palyku Working Group, the Palyku Applicant or the Palyku claim group. As for the Palyku People more generally, they claimed that they were also “partly responsible” for this delay. In support of that contention, they instanced the following examples: that from 2012, some members of the Palyku People had decided not to participate in claim research for the Palyku #2 claim; and the two years’ delay between April 2014 and April 2016 when, having received the Nyamal Applicant’s offer, the Palyku People waited before deciding to file a new claim.
In respect of the Palyku People’s relationship with YMAC, the Nyamal Applicant appeared to defend YMAC by claiming that it had, in fact, acted on the Palyku People’s instructions. In this respect, it pointed to the five year period between September 2009 and April 2014 when it was actively involved in three attempts to resolve matters with the Nyamal People by agreement. It also contended that, as long ago as August 2008, YMAC’s CEO, Mr Hawkins, had told a Palyku community meeting that, if they were dissatisfied with YMAC, it was open to them to “go elsewhere” and the Palyku People had taken no steps to do so. On this aspect, they contended that the Palyku People had the financial resources to retain private lawyers from as early as 2006. In support, they submitted a list of evidence references which may be summarised as follows:
(a)during the Nullagine Claimant Meeting, held across 15 and 16 September 2006, Mr Walter Stream and Ms Gail Jones asked whether the Palyku could pay for connection reports and independent legal advice respectively, both of which were answered in the affirmative;
(b)during the Palyku Community Group Meeting on 19 November 2007 there is a discussion regarding the Palyku obtaining independent legal advice regarding any trust issues;
(c)during the Palyku Community Meeting on 28 August 2008, YMAC’s CEO, Mr Simon Hawkins, explained how money received from mining companies has been used to fund some Palyku meetings;
(d)the “Outcomes & Resolutions of the Palyku Community meeting [on] 18 March 2016” document records that, at the Palyku Community Meeting on 22 August 2011, the Palyku authorised MacLean Legal to represent them in relation to “all matters arising from future act applications or otherwise, including objection matters … and YMAC will represent Palyku in relation to the Native Title claim [and] the filing of objections to s.29 notices”;
(e)in his letter to YMAC dated 13 March 2014, Mr Corunna asserted that they had paid for their own connection research as a result of being “not completely satisfied with YMAC’s anthropological research into [the] connections to Corunna Downs”;
(f)YMAC sent the Palyku a letter on 27 February 2018 advising them that they would be unable to assist the Palyku Applicant to prepare and lodge a new claim over the northern boundary area; and
(g)the following documents which refer to future acts:
(i)the minutes of the Palyku Working Group Meeting on 20 February 2001;
(ii)the minutes of the Palyku Meeting on 4 May 2001;
(iii)the minutes of the Palyku Community Meeting on 20 November 2004; and
(iv)the minutes of the Palyku Working Group Meeting on 8 July 2005.
There is a number of reasons why I consider these contentions cannot be accepted. Before I outline them, it is convenient first to dispose of a related contention of the Nyamal Applicant. That is its claim that, allowing the Palyku People to pursue their Palyku #2 claim, in the circumstances outlined above, will bring the administration of justice into disrepute. The Nyamal Applicant’s contention on this aspect cannot be accepted because it ultimately depends upon who out of the Palyku People and the Nyamal People are correct in their claims to hold native title rights and interests in the area in contention and that issue cannot be determined in this interlocutory application. On the one hand, if the Nyamal People ultimately establish that they hold the native title rights and interests in that area, the Nyamal Applicant would probably be correct in claiming that reasonable members of the public would likely think less of a judicial system that required it to suffer the further delay inherent in allowing the Palyku People to pursue the Palyku #2 claim to failure. On the other hand, if the Palyku People ultimately establish that they hold the native title rights and interests in that area, the same reasonable members of the public would likely think less of a judicial system that allowed those substantive rights to be defeated by an argument about the amount of time they had taken to assert and establish them. This, all the more so, in circumstances where delays in native title litigation are, regrettably, commonplace.
I return to the unreasonable delay question above. On that question there is an important matter to be noted at the outset. It is that there is no time limit for the filing of a native title determination application under s 13(1) of the NTA. Accordingly, while it has not expressed its case on this question in such terms, the Nyamal Applicant appears to be claiming that the Palyku People are guilty of “gross laches” in the sense propounded by Deane J in Orr v Ford (1989) 167 CLR 316 (Orr) at 341: “where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party”. Put differently and expressed by reference to the abuse of process principles set out above, the Nyamal Applicant appears to be claiming that the unreasonable delay on the part of the Palyku People in pursuing their claims to hold native title rights and interests in the claim area of the Palyku #2 claim makes their filing of that claim in this Court in 2018 seeking a determination of those rights, unjustifiably oppressive to the Nyamal People.
As in Orr, the main component of the serious and unfair prejudice the Nyamal Applicant says will give rise to that oppression is the unavailability of witnesses who have passed away in the intervening period and whose evidence would be likely to allow them to defeat the Palyku #2 claim. The witnesses concerned are detailed in a table which is annexed to the affidavit of Ms Neale. They include numerous senior knowledgeable Nyamal People many of whom had, for much of their lives, lived and worked in and around Nullagine and the Palyku #2 claim area. As a secondary matter, the Nyamal Applicant has also relied on the disappointment and distress the Nyamal People will suffer in having the determination of their native title rights and interests further delayed. I should say at once that I consider this component falls into a similar category to that above (see at [243]–[243]).
It may be accepted that, even in the context of native title litigation, where long delays are regrettably all too common, the 20 year period between the late 1990s when the Palyku People first asserted their claims to hold rights and interests in the area now covered by the Palyku #2 claim and the filing of that claim in 2018 is significant. Nonetheless, the critical question in this application is whether, in all the relevant circumstances, the Palyku People, or certain of their members, or YMAC and/or the lawyers employed by it, by their conduct, should be held responsible for that delay such that the Palyku #2 claim should be summarily dismissed as an abuse of process.
For the reasons that follow, I consider that YMAC and/or the lawyers employed by it were responsible for most of the delay in this matter and I do not accept the Nyamal Applicant’s contention that the Palyku People should be visited with some, or all, of that delay because they did not use their resources to retain private lawyers soon after they became dissatisfied with YMAC’s services.
It is appropriate to begin by noting YMAC’s, or PNTS’, role as a Representative Aboriginal and Torres Strait Islander Body, or what is commonly referred to as a native title representative body, under Part 11 of the NTA.
Under s 203B of the NTA, a native title representative body like YMAC is vested with a number of functions. One of those functions is a “facilitation and assistance function”. The content of that function is prescribed by s 203BB(1) of the NTA as follows:
The facilitation and assistance functions of a representative body are:
(a)to research and prepare native title applications, and to facilitate research into, preparation of and making of native title applications; and
(b)to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following:
(i)native title applications;
(ii)future acts;
(iii)indigenous land use agreements or other agreements in relation to native title;
(iv)rights of access conferred under this Act or otherwise;
(v)any other matters relating to native title or to the operation of this Act.
However, a native title representative body must not perform this function unless it has been requested to do so (see s 203BB(2)). Once such a request has been made, the body concerned must “use its best efforts” to perform that function “in a timely manner” (see s 203BA(1)). At the same time, it is required to determine the priorities it will give to the performance of its functions (see s 203B(4)); and maintain organisational structures and processes which, among other things, “promote the satisfactory representation by [it] of … persons who may hold native title” in its area of responsibility (see s 203BA(2)).
Furthermore, and importantly for this matter, s 203BB(4) contains a constraint on the performance of this facilitation and assistance function. It applies where a native title representative body is requested by two or more different bodies or persons to perform that function in relation to “a particular matter that relates to particular land or waters” (see s 203BB(4)(a)). The word “matter” is defined in s 203BB(6) to mean “a native title application, or a consultation, mediation, negotiation or proceeding of a kind referred to in paragraph (1)(b)”.
It should also be noted that s 203BB(5) does not prevent a native title representative body briefing out its facilitation and assistance function.
Since the dispute between the Palyku People and the Nyamal People was, at the very least, a matter “relating to native title” (see s 203BB(1)(b)(v) above) and, from its outset, concerned the “particular land or waters” in and around Nullagine, there can be little doubt that the constraint in s 203BB(4) applied from an early stage.
While there is no evidence on this subject, it can be inferred that a person or persons associated with both the Palyku People and the Nyamal People made a request of YMAC, or its predecessor PNTS, for it to perform its facilitation and assistance function in respect of their respective claims to hold native title rights and interests in the land or waters mentioned above.
There is also no evidence as to which out of the Palyku People and the Nyamal People made that request first. It might be inferred from the fact that the Palyku People’s claims were lodged in response to the Nyamal People’s claims (see at [90(3)] above) that it was a person associated with the Nyamal People, but that does not necessarily follow. Among other things, this issue is complicated by the fact that the provisions of Part 11, including s 203BB in its current form, did not fully come into effect until 1 July 2000, well after those claims were lodged (see Quall v Northern Land Council [2018] FCA 989 at [16]–[18]).
Perhaps most importantly of all, there is no evidence that YMAC, or PNTS, ever turned its mind to the provisions of s 203BB(4) of the NTA, or ever considered obtaining the consent of whichever party first made the request referred to above, to its continuing to act for the other party. There is also the further complication that, quite apart from this statutory provision, the circumstances outlined above would appear to have given rise to a conflict of duty on the part of the lawyers involved at YMAC, or PNTS. That is, in acting for two different parties in court proceedings (after 30 September 2018 when the 1998 amendments came into effect) involving a conflict with respect to their rights and interests over the same area of land.
In making these observations, I should hasten to add that neither YMAC, nor PNTS, nor the lawyers employed by them, are parties to these proceedings and none of them has been afforded the opportunity to explain their position on these matters. These observations, and what follows, must therefore be read in that light.
The inherent difficulties associated with YMAC’s (PNTS’) failure to address the matters mentioned above are, in my view, the source of most of the delay that has occurred in the filing of the Palyku #2 claim. Those difficulties included the following factors. First, YMAC (PNTS) gave priority to researching and pursuing the claims of the Nyamal People and assigned a low priority to advancing the claims of the Palyku People. So much is apparent, in my view, from the comparison between the relatively expeditious approach taken to advancing the Nyamal People’s claims as outlined at [194] above, with that taken in respect of the Palyku People’s claims, as emerges from the review of the record at [89]–[193] above. Secondly, when the Palyku People began to complain about the lack of progress in their claims in 2008 (see at [163]–[165] above), YMAC unhelpfully dismissed those complaints by saying that they could “go elsewhere” rather than proactively assisting them to facilitate that course or otherwise addressing them. Thirdly, when ultimately presented with the stark and direct conflict between the claims of the two groups, YMAC initially took no effective action and then issued a last minute ultimatum requiring the Palyku People to “go elsewhere”. This occurred between 18 April 2016 (18 March 2016 see at [183]–[184] above) when the Palyku People decided to pursue what became the Palyku #2 claim (see at [186] above) and the letter dated 27 February 2018 from Mr Meegan presenting the Palyku People with the ultimatum mentioned above (see at [33]).
With the value of hindsight, one might be critical of the Palyku People for having failed to address YMAC’s shortcomings earlier. The evidence highlighted by the Nyamal Applicant above demonstrates, in my view, that they probably had the financial resources at their disposal to employ private lawyers. However, when one takes account of the fact that YMAC was the statutory body established under the NTA with the function of, among other things, providing assistance to the Palyku People to pursue their claims under the NTA, I am not inclined to adopt that criticism. That is to say, I consider it was reasonable for the Palyku People to expect that YMAC would properly discharge its facilitation and assistance function to them in accordance with the provisions of Part 11 of the NTA. In all the circumstances, I would not characterise their failure to address YMAC’s failure as unreasonable such as to make them responsible for the long delay mentioned above.
Finally, it is necessary to briefly address the matters upon which the Nyamal Applicant has relied to contend that the Stream brothers, and the Palyku People more generally, were responsible for some, or all, of this delay.
In their evidence, two of the Stream brothers, Mr Kevin Stream and Mr Walter Stream, readily conceded that they were not actively involved in the Palyku claim group’s deliberations with respect to its claims to the Palyku #2 claim area before 2005 (see Mr Kevin Stream at [120] and Mr Walter Stream at [126] and [128] above). The third brother, Mr Frederick Stream, did not give any evidence on this point. Mr Kevin Stream said in explanation that he was content to leave those matters to the Palyku Applicant (see at [120] above).
There is a number of reasons why I do not consider this conduct played any significant part in creating the long delay mentioned above. First, while the Stream brothers have conceded that they were not actively involved within the Palyku claim group, the evidence shows that, as early as 2004, either Mr Frederick Stream, or Mr Walter Stream, presented their father’s map to Ms Neale as evidence of their claims to the area now covered by that claim (see at [131]–[136] above). Secondly, as the review conducted earlier in these reasons shows, during the period up to 2005 there were, in any event, other far more senior Palyku men active within the Palyku claim group. It is also worth adding that there is no dispute that the three Stream brothers have been actively involved in the pursuit of the rights and interests that are central to the Palyku #2 claim in the 13 year period since about 2005. Thirdly, and perhaps most importantly, during the period up to about 2005, little, if any, effort appears to have been devoted to advancing any of the claims, that is, of either the Nyamal People, or the Palyku People. This is partly demonstrated by the evidence of Ms Neale that the research for the Nyamal #1 claim did not begin in earnest until about 2005 (see at [194] above).
In all these circumstances, I do not consider the non-involvement of the Stream brothers in pursuing the claims at the heart of the Palyku #2 claim prior to 2005 contributed in any significant degree to the 20 year delay in filing that claim.
I turn next to the Palyku People more generally. As has already been mentioned on this aspect, the Nyamal Applicant has identified two matters: the non-participation of some members of the Palyku claim group since 2012 in research for the Palyku #2 claim; and the two year delay that allegedly occurred between 2014 and 2016.
Before addressing these two matters, the following observations are appropriate. First, the record reviewed earlier in these reasons shows that, from early in the piece, the Palyku People regularly reiterated their claims to hold native title rights and interests in the areas north and west of Nullagine which are now covered by the claim area of the Palyku #2 claim (see the summary at [218] above).
Secondly, in the same period, consistent with the central object of the NTA to resolve native title matters through a negotiated outcome (see Widjabul Wia-Bal v Attorney-General of New South Wales [2020] FCAFC 34 at [32] quoting the Explanatory Memorandum to the 2009 amendments to the NTA), the Palyku People regularly sought to meet with the Nyamal People to attempt to resolve their dispute with them (see, for example, the Palyku Working Group meeting of 20 February 2001 and the subsequent Palyku and Nyamal elders meeting of 23 March 2001 at [101]–[102] above; the Palyku Working Group meeting of 8 July 2005 and the subsequent letter at [151]–[153] above; the Palyku meeting of 23 and 24 July 2009 at [169] above; the 2012 field trip and the April 2014 Land Summit at [172] and [177] above; and the Palyku community meeting of 31 August 2017 at [186] above).
Against that background, I return to the two matters mentioned above. As to the former, even accepting that non-participation occurred, having regard to the review of events set out earlier in these reasons (see at [172]–[187] above), I do not consider it significantly affected the pursuit by the Palyku People more generally of the rights and interests now at the heart of the Palyku #2 claim, nor, for that matter, the ongoing negotiations between them and the Nyamal People concerning the dispute with respect to those rights.
As to the latter, that same review shows that the following relevant events occurred in the period from 2014 to 2016. First, on 13 March 2014, Mr Corunna wrote a letter to YMAC expressing concerns “about how YMAC is managing the Nyamal and Palyku native title claims” (see at [175] above). In that letter, Mr Corunna went on to request YMAC’s assistance to do two things: to make the Nyamal People aware that the Palyku People asserted rights and interests in Corunna Downs and other areas within their claim area; and to provide the Palyku People with assistance to prepare and make their own native title claim to those areas. About a week later (on 21 March 2014), Mr Meegan responded to Mr Corunna’s letter and, after a lengthy explanation, concluded with this statement: “We suggest that your request be deferred and should await the outcomes of the April meetings” (see at [176] above).
The details of the “April meetings”, or the “April Land Summit” as it was entitled, are set out earlier in these reasons (see at [177] above). Following that Summit, Mr Young of YMAC wrote to the members of the Palyku community on 8 May 2014 and, among other things, set out an offer by the Nyamal People to resolve their dispute (see at [178]–[179] above). Mr Young concluded that letter by stating “Sometime in the 2014/2015 financial year, YMAC will convene a community meeting to obtain Palyku instructions about the Njamal offer and any counter-offers the Palyku [P]eople may wish to make to settle the overlaps” (see at [179] above).
No Palyku meeting was convened by YMAC during that period. However, two Palyku claim group meetings were held in the succeeding period, one on 12 August 2015 (see at [180] above) and the other on either 18 March, or 18 April 2016 (see at [183]–[185] above). In the meantime, Mr Young wrote again to the members of the Palyku community repeating the Nyamal People’s offer in essentially the same terms (see at [182] above). It is not immediately apparent why that was considered necessary. In any event, at the second of the Palyku claim group meetings referred to above, those present decided to reject the Nyamal People’s offer and to file what became the Palyku #2 claim (see at [185]–[186] above).
When all these events are considered as a whole, and in context, I do not consider there is any validity in the Nyamal Applicant’s contention that the Palyku People were responsible for any significant delay in this period.
For these reasons, I do not consider that the Nyamal Applicant has established that the Palyku People were guilty of unreasonable delay in filing the Palyku #2 claim. The question posed by [87(c)] above must therefore be answered in the negative.
Conclusion on the Nyamal application
Since I have concluded that each of the three central questions raised by the Nyamal Applicant’s contentions at [87] above should be answered in the negative, it necessarily follows that I do not consider it has met the heavy onus required to establish that the Palyku #2 claim should be dismissed as an abuse of process.
OVERALL CONCLUSION
For the above reasons, each party’s interlocutory application must be dismissed. Since the Nyamal Applicant has failed in its application, it is not entitled to the costs order it sought. The Palyku Applicant did not seek a costs order. Accordingly, consistent with s 85A, there will be no order for costs in respect of either application. The orders will therefore be:
1. The Palyku application filed on 10 April 2019 is dismissed.
2. The Nyamal application filed on 20 February 2019 is dismissed.
I certify that the preceding two hundred and seventy-four (274) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 27 March 2020
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