Nyamal Palyku Proceeding

Case [2020] FCA 428

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 2018
Judge: 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issues, facts and contentions is a pleading – whether it is in the interests of justice to allow the admissions to be withdrawn – whether legal representatives have the implied authority to make admissions on a claim group’s behalf – whether the admissions were limited to the proceeding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…

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Details
AGLC
Nyamal Palyku Proceeding [2020] FCA 428
Case
[2020] FCA 428
Decision Date

CaseChat Overview and Summary

The case involves two native title claims, the Nyamal #1 claim and the Palyku #2 claim, and two separate applications made by the authorised applicants of the respective claim groups. The Palyku Applicant, representing the Palyku People, filed an application seeking leave to withdraw certain admissions made in a Statement of Agreed Facts (SAF) that was signed and filed in December 2017. The Nyamal Applicant, representing the Nyamal People, filed an interlocutory application seeking the dismissal of the Palyku #2 claim on the grounds of abuse of process. The legal issues before the court included whether the admissions were binding on the Palyku Applicant and the Palyku People for the purposes of the Palyku #2 claim, and whether the Palyku #2 claim constituted an abuse of process. The court held that the admissions were binding for the purposes of the separate question proceeding relating to the Nullagine Overlap Area, and not for the Palyku #2 claim. The court also held that the Palyku #2 claim did not constitute an abuse of process. Consequently, the Palyku application was dismissed, and the Nyamal application was dismissed.

The court began by considering whether the admissions made in the December 2017 SAF were binding on the Palyku Applicant and the Palyku People for the purposes of the Palyku #2 claim. The court noted that formal admissions are generally only binding for the purposes of the particular proceeding in which they are made. However, the court found that the admissions were made for the purposes of a separate question proceeding relating to the Nullagine Overlap Area, and their effect was limited to that proceeding. Therefore, the admissions were not binding on the Palyku Applicant or the Palyku People for the purposes of the Palyku #2 claim. The court also considered whether it was in the interests of justice to allow the Palyku Applicant to withdraw the admissions. The court found that, even if the admissions were binding with respect to the Palyku #2 claim proceeding, it would have concluded that it was in the interests of justice to give leave to the Palyku Applicant to withdraw them. The court then turned to the Nyamal Applicant’s interlocutory application seeking the dismissal of the Palyku #2 claim on the grounds of abuse of process. The court held that the Palyku #2 claim did not constitute an abuse of process, and therefore dismissed the Nyamal application.

Orders

Orders of the court

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.

Background

Background to the litigation

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 BACKGROUNDThe 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 APPLICATIONThe 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.

Ratio Decidendi

Legal Principle Established

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 dispositionThe 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.