Quall v Native Title Registrar

Case [2021] FCA 865

FEDERAL COURT OF AUSTRALIA

Quall v Native Title Registrar [2021] FCA 865

File number(s): NTD 9 of 2021
Judgment of: GRIFFITHS J
Date of judgment: 29 July 2021
Catchwords: PRACTICE AND PROCEDURE – application for judicial review of registration decision by delegate of Native Title Registrar under s 24CK of the Native Title Act 1993 (Cth) – two interlocutory applications for summary judgment and/or strike out – where amended originating application discloses no grounds of review or orders sought – mere factual allegations going to merits of decision – self-represented litigant afforded opportunity to remedy deficiencies – summary judgment entered
Legislation:

Administrative (Judicial Review) Act 1977 (Cth) ss 5(1), 11(1)(b), 11(7)

Federal Court of Australia Act 1976 (Cth) ss 31A(2), 37M

Native Title Act 1993 (Cth) ss 24CK, 203BE(5)

Federal Court Rules 2011 (Cth) rr 13.01(a), 16.21, 26.01, 31.05

Cases cited:

Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629

Dowling v Commonwealth Bank of Australia [2008] FCA 59

Ferdinands v State of South Australia (No 2) [2017] FCA 1436

Haque v Jabella Group Pty Ltd [2016] FCA 962

Karjniw v Newman (No 2) [2015] FCA 673

Keenan v Bundaberg Port Authority [2016] FCA 134

Kitoko v University of Technology Sydney [2021] FCA 360

Quall v Northern Territory [2009] FCA 18

Quall v Northern Territory [2009] FCAFC 157; 180 FCR 528

Quall v Northern Territory [2011] FCA 1141; 286 ALR 374

Quall v Northern Territory [2012] FCA 677

Quall v Risk [2001] FCA 378

Risk v Northern Territory [2006] FCA 404

Spencerv Commonwealth of Australia [2010] HCA 28; 241 CLR 118

Sullivan v North West Crewing Pty Ltd [2016] FCA 1130
Division: General Division
Registry: Northern Territory
National Practice Area: Native Title
Number of paragraphs: 27
Date of last submission/s: 25 June 2021
Date of hearing: Determined on the papers
Solicitor for the First Respondent: Ms C Fewings of the National Native Title Tribunal
Solicitor for the Second Respondent: Ms L Peacock of the Northern Land Council
Counsel for the Third Respondent: Mr L Peattie
Solicitor for the Third Respondent: Solicitor for the Northern Territory

ORDERS

NTD 9 of 2021
BETWEEN:

KEVIN LANCE QUALL

Applicant
AND:

NATIVE TITLE REGISTRAR

First Respondent

NORTHERN LAND COUNCIL

Second Respondent

NORTHERN TERRITORY

Third Respondent

ORDER MADE BY:

GRIFFITHS J

DATE OF ORDER:

29 JULY 2021

THE COURT ORDERS THAT:

1.Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01(e) of the Federal Court Rules 2011 (Cth), summary judgment be entered for the respondents for the whole of the amended originating application.

2.There be no order as to costs. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GRIFFITHS J:

  1. By an amended originating application filed on 7 June 2021, the applicant sought judicial review of a decision dated 26 February 2021 of a delegate of the Native Title Registrar to register the Kenbi Indigenous Land Use Agreement (Kenbi ILUA) pursuant to s 24CK…

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AGLC
Quall v Native Title Registrar [2021] FCA 865
Case
[2021] FCA 865
Decision Date

CaseChat Overview and Summary

In the case of Quall v Native Title Registrar, the applicant, self-represented, sought judicial review of a decision by the Native Title Registrar to certify and register an Indigenous Land Use Agreement (ILUA) known as the Kenbi ILUA. The respondents included the Native Title Registrar, the Northern Land Council (NLC) and the Northern Territory. The applicant contended that the Kenbi ILUA did not properly identify the traditional owners of the land and waters in question, and that the Registrar should not have certified and registered the agreement. The Federal Court was required to determine whether the application for judicial review was valid and whether it disclosed a cause of action. The Court found that the application failed to comply with the statutory requirements for judicial review applications and did not disclose any legal grounds for the Court to review the Registrar's decision.

The Court held that the application did not satisfy the statutory requirement under section 11(1)(b) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to set out the grounds for the application. The applicant's document merely made factual assertions about the claimed native title rights of the Dangalaba people, without addressing the legal grounds for review or the conditions precedent to the Registrar's exercise of power under section 24CK of the Northern Territory (National Parks and Wildlife) Act. The Court also found that the applicant had not provided any submissions or evidence that disclosed a reasonable cause of action. The Court concluded that the application did not disclose any discernible grounds of review or orders sought, and therefore the Registrar's decision should be upheld. The Court ordered that summary judgment be entered in favour of the respondents and that there should be no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am mindful that there is a need for particular caution in considering whether summarily to dismiss proceedings instituted by a self-represented litigant (Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [57] per Reeves J; Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 per McKerracher J; Haque v Jabella Group Pty Ltd [2016] FCA 962 at [36]-[38] per Bromwich J). Regard must also be had to the interests of other parties and the overarching purpose of this Court’s practice and procedure provisions (s 37M of the FCA Act) to prevent the unnecessary waste of public and private resources (see Keenan v Bundaberg Port Authority [2016] FCA 134 [45]-[46] per Reeves J; Ferdinands v State of South Australia (No 2) [2017] FCA 1436 at [53]-[54] per Charlesworth J). Conclusion For all these reasons, summary judgment should be entered in favour of the respondents in relation to the whole of the applicant’s amended originating application. It is therefore unnecessary to consider the alternative orders sought by the NLC and Northern Territory in their respective interlocutory applications. In their respective written submissions, the NLC and Northern Territory stated that they did press any orders for their costs in the proceedings. As noted above, the first respondent, the Native Title Registrar, filed a submitting notice save as to costs. There should be no order as to costs.

Ratio Decidendi

Legal Principle Established

Relevantly, with respect to s 24CK(2)(c), s 203BE(5) provides that in certifying an application for the registration of an ILUA, the representative body must be of the opinion that:(a)all reasonable efforts have been made to ensure that all person who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and(b)all the person so identified have authorised the making of the agreement; and (c)any conditions under section 251BA on the authority that relate to the making of the agreement have been satisfied. Consideration and determination For the following reasons, summary judgment should be entered for the respondents for the whole of the amended originating application pursuant to s 31A(2) of the FCA Act and/or r 26.01(e) of the 2011 FCRS. First, as noted above, as a matter of both form and substance, the amended originating application fails to disclose any discernible grounds of review or orders sought. While the document annexed to the amended originating application raises a number of factual matters concerning the alleged native title rights of the Dangalaba people, it fails to engage at all with the delegate’s decision. It discloses no asserted grounds of legal error in the delegate’s decision, but rather merely seeks to impugn the evidence upon which the NLC certified the Kenbi ILUA for registration. Indeed, while this document refers to the registration decision, it does not engage with any of the conditions precedent to the delegate’s exercise of power under s 24CK of the NT Act. Furthermore, as required by s 11(1)(b) of the ADJR Act, an application for judicial review must set out the grounds in s 5(1) which are relied upon for the application. The amended originating application does not comply with this statutory requirement, which plays a dual role of ensuring that parties are given notice of the case they are asked to meet, and to enable the Court to be satisfied that its jurisdiction is enlivened. At its highest, the passage from the document annexed to amended originating application extracted at [9] above alleges that the “current Kenbi Land claim does not include the correct mappings, family, traditional sacred sites and process of a land claim …”. While it is not clear whether the “Kenbi Land Claim” means the Kenbi ILUA, this could be said to amount to an argument that the Registrar should not have been satisfied under s 24CK(2)(c) of the NT Act that the NLC, as the representative body, had made all reasonable efforts to ensure all persons who hold or may hold native title in relation to the land or waters in the area covered by the agreement have been identified (see s 203BE(5)(a)). However, the Court’s function on a judicial review application is not to assess the merits of the delegate’s satisfaction of this requirement, but rather is to ascertain whether it was made according to law. Secondly, this is not a case in which the evidence discloses that a reasonable cause of action may exist and therefore the Court should strike out the amended originating application, but should not proceed summarily to dismiss the proceedings (see Chandrasekaran (No 3) at [96] per Wigney J extracted at [15] above). The document annexed to the amended originating application does no more than make bare factual assertions about the claimed native title rights of the Dangalaba people in areas surrounding Darwin. As noted by the delegate’s reasons at [95], substantially similar claims have been rejected in an Aboriginal Land Commission report authored by Gray J in relation to the Cox Peninsula, and in other areas surrounding Darwin by numerous decisions in this Court (see Quall v Risk [2001] FCA 378; Risk v Northern Territory [2006] FCA 404; Quall v Northern Territory [2009] FCA 18; Quall v Northern Territory [2009] FCAFC 157; 180 FCR 528; Quall v Northern Territory [2011] FCA 1141; 286 ALR 374; Quall v Northern Territory [2012] FCA 677). As noted above, the applicant filed no submissions or evidence in response to the interlocutory applications which disclosed that a reasonable cause of action may exist.