Quall v Northern Territory of Australia

[2010] HCATrans 186

[2010] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D13 of 2009

B e t w e e n -

KEVIN (TIBBY) QUALL

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JULY 2010, AT 10.47 AM

Copyright in the High Court of Australia

MR B.A. KEON-COHEN, QC:   May it please the Court, I appear with my learned friend, MR B.V. LOIZOU for the applicant.  (instructed by Robert Welfare)

MS S.L. BROWNHILL:   If the Court please, I appear for the respondent.  (instructed by Solicitor for the Northern Territory)

HAYNE J:   Yes, Mr Keon‑Cohen.

MR KEON-COHEN:   If your Honour pleases.  May I mention some preliminary matters.  First, there is a significant omission from the application book for which we apologise.  Half of the grounds of appeal are missing.  We have sent up that missing page.  It should be page 86A.

HAYNE J:   Yes, that has been distributed.

MR KEON-COHEN:   Thank you, your Honour.  I apologise for that.  Secondly, your Honour, your Honour will see in the grounds of appeal that as proposed there we bring this matter in respect of three of Mr Quall’s applicant groups, and the third group is based on abuse of process, ground C.  As I have indicated to my learned friend, we do not pursue that particular ground so there is no issue before this Court in regard to the question of abuse of process as against the question of application of issue estoppel.  That appears, your Honour, in application book page 87, ground C, and mysteriously, your Honour, that ground does not appear in our draft notice of appeal so ‑ ‑ ‑

BELL J:   But that disposes of the Top End society aspect of the application.

MR KEON-COHEN:   Correct, your Honour.  Third, your Honour, as a matter of public record for my client, your Honour Justice Hayne may or may not recall that Mr Quall appeared in person before your Honour on the application for special leave arising on the merits of the determination by Justice Mansfield in Risk.  Your Honour dismissed that matter ‑ ‑ ‑

HAYNE J:   You have the advantage of me, but ‑ ‑ ‑

MR KEON-COHEN:   It is mentioned in the Risk judgment, your Honour.  Your Honour, we make no application in respect of that.

HAYNE J:   But thank you for drawing it to my attention.

MR KEON-COHEN:   Your Honour, the outline of argument is before you.  We rely on all of it save for the abuse of process point.  The summary of our submissions are at application book page 92, and may I express them this way.  Firstly, does issue estoppel, when applied to a claim for a determination of native title under the Native Title Act, attract to the exception of special circumstances such that a judicial discretion is brought to bear and the doctrine may not apply.

In this matter, your Honours, clearly in the judgment of Justice Reeves and in the Full Court such a process was not pursued.  We invite this Court to find that that was error of law because, in our submission, special circumstances is, or on some of the appeal judgments that we have referred to, part of the law of Australia.  If this Court is of the view that that is uncertain then, in our submission, that is one reason favouring this as an appropriate vehicle to be referred for full hearing.

BELL J:   Notwithstanding that the submission in that respect was not agitated before the primary judge or in the Full Court.

MR KEON-COHEN:   Notwithstanding that, your Honour.  There were significant submissions before the primary judge concerning the appropriate ruling that he should make on a strike‑out application, including on issue estoppel.  In that sense, the question was agitated.  In his reasons, his Honour Justice Reeves goes to the principles of issue estoppel.  We have no argument with the way he expresses it, and he goes to the question whether he should rule in favour of the Territory that my client’s application should be barred.  So in that sense, your Honour, the question of issue estoppel generally was agitated both before Justice Reeves and the Full Court, but not in this precise circumstance.

BELL J:   But not the points that you now take including the Arnold point.

MR KEON-COHEN:   Correct, your Honour.

BELL J:   How do you deal then with the respondent’s submissions on application book page 107 at paragraphs 10 and following, in particular paragraph 11, the absence of material, so it is contended, to suggest a basis for the application of one of the exceptions in Arnold?

MR KEON-COHEN:   Well, your Honour, we, in our submission, need not rely on absence of material in the sense of factual material ‑ ‑ ‑

BELL J:   What then do you rely on as giving rise to the special circumstance?

MR KEON-COHEN:   We rely, your Honour, primarily upon the particular processes that Justice Mansfield was pursuing in a native title application, provisions of the Act which clearly indicate that such a process is a process in rem, distinguishing it when one applies issue estoppel from litigation inter partes and, secondly, your Honour, we rely upon the particular circumstance that under the Native Title Act an application for a determination of native title may be made to an area only once.  A determination may be made only once, and it is in that context that Justice Mansfield made two final decisions, and could I hand to your Honour the actual determination and orders made by Justice Mansfield because it comes to the heart of our submission.

CRENNAN J:   Before we go further, Mr Keon‑Cohen, can I just clarify some matters about Area A and Area B.  Looking at application book 81 – this is paragraph 44 of the Full Court’s decision – there is a reference there to the respondent’s written submissions and the first two sentences assert that:

The appellant has always asserted in this native title determination application that the land claimed was Larrakia land -

Do you accept that?

MR KEON-COHEN:   Yes, your Honour.  We accept that Justice Mansfield made a number of critical or fundamental decisions with respect to the requirements of the Native Title Act.  First, that at sovereignty, 1825, he found on the evidence before him this was Larrakia land.  He secondly found that, as at 1825, in respect of Area A, not Area B, that there was not a separate Quall applicant group society called the Danggalaba group, nor was there a separate second Quall applicant group called the Kulumbiringin group, but that it was Larrakia/Kulumbiringin land, Kulumbiringin being an alternative description of Larrakia.  That is the ‑ ‑ ‑

CRENNAN J:   Yes, I understand that.  That is in fact picked up in a part of the submissions to which I was directing your attention.  I wanted to ask you then, looking at the reference to Tindale’s map, whether that map shows Larrakia land as being Area A and Area B.

MR KEON-COHEN:   Your Honour, I have not seen the map and I regret I cannot answer that question, but we accept that their Honours Justice Mansfield and Justice Reeves proceeded on the basis that his determination in respect of there being a normative society in the Yorta Yorta sense was with regard to the Darwin area.  He also on other occasions referred to a normative society existed, being a Larrakia society, to Area A.  To that extent, your Honour, it may equate to the Tindale map, ie the Darwin area being an area larger than Area A.

We, in our submission, are not concerned with the precise meaning of Tindale’s map or the Darwin area or Area A.  Our submission is that in respect of an application in rem, the Court should distinguish clearly between the determination made and other orders.  In our submission, the critical notion is that resolutions of fact and law which were ultimate questions of fact or law in the issue estoppel sense were made leading to the determination only.  Thus, it is said against us by my learned friend, there has been a ruling about the society with respect to the Darwin area, that embraces Area A and Area B, that finishes for all time Mr Quall’s ability to reagitate that issue because of the application of issue estoppel.

CRENNAN J:   When you say the Darwin area, that is the Larrakia land ‑ ‑ ‑

MR KEON-COHEN:   Yes, your Honour.

CRENNAN J:   ‑ ‑ ‑ that was the subject of the application.

MR KEON-COHEN:   No, your Honour.  That was the subject of the original Larrakia application.  The subject of the proceeding before Justice Mansfield was a consolidated proceeding which had been split in half, Area A and Area B, and his Honour was only hearing Area A.  Thus, in our submission, when you look to the provisions of the Native Title Act which I will take you to, any ultimate decisions, groundwork decisions in respect of issue estoppel, ie the existence of a society, the lack of continuous connection since 1825, can only have effect for the purpose of issue estoppel, with respect to Area A, that being the area for which a determination was made.  If the Court would ‑ ‑ ‑

HAYNE J:   Just before you come to that - I know you want to get us into the order and determination - what is the distinction between Area A and Area B?

MR KEON-COHEN:   Area A, your Honour, is the area broadly within the municipal boundaries of Darwin.  Area B is to a wider surrounding area.

HAYNE J:  Is the distinction between the two areas founded entirely on, in effect, the later drawn municipal boundary, or is there some distinction between Area A and Area B, which is found at otherwise than in whatever happens to be the area of the City of Darwin.

MR KEON-COHEN:   No your Honour.  Justice Reeves indicates that the areas delineated were for the convenience of the parties and for the expeditious resolution of, I think, 18 or 19 overlapping claims.

HAYNE J:   Yes.

MR KEON-COHEN:   So that the considerations would not have been those put by your Honour, rather, what is the most efficient way to deal with this very complex series of overlapping claims?  Answer, the extinguishment issues, for example, will be greatly eased or consolidated, that the obvious area to approach is, for reasons of public policy perhaps, the Darwin municipal areas.  The other areas which are then partitioned off can wait.  It would have been a purely practical matter of convenience, your Honour. 

Now, in this regard, may I take the Court to the provisions of the Native Title Act upon which we rely for this argument. Your Honours will, I hope, have before you relevant sections of the Act - section 3, being the “Objects” section, which we say and is clearly recorded in the authorities, this is beneficial legislation. It is a special measure for the purposes of 51(xxvi) of the Constitution and it has been clearly held that it is to be so interpreted.

If I could take your Honours then to the provisions which control these determinations and which deliver an in rem proceeding.  Section 13(1)(a) - this says that an application can only be made to an area not already determined, a pristine area, if you like.  There can only be one application per area.  Section 61A is to the same effect and section 68(a) and (b) says you cannot make two determinations to the one area. 

Now, your Honours, we contrast those provisions which clearly focus the inquiry towards a determination with the orders for dismissal.  In this case, Justice Mansfield made a negative determination and your Honours will see that in the document I have handed up, ie he determined that no native title existed in respect of Area A.  That area, your Honours, was the subject of overlapping claims by the Larrakia people and, secondly, by my client Mr Quall’s two groups.

CRENNAN J:   The basis of his Honour’s decision, I think, can be picked up in a very summary way by looking at application book 82, paragraph 45 of the Full Court’s decision, points (b) and (c), that is to say, his Honour found that:

the Larrakia peoples are the relevant Aboriginal society for Larrakia lands –

which, as I understand it, includes Area A and Area B.

MR KEON-COHEN:   Yes, your Honour.

CRENNAN J:   Then his Honour found that:

the laws and customs . . . have been subject to substantial interruption ‑ ‑ ‑

MR KEON-COHEN:   Yes, your Honour, and we accept that.  My point, your Honour, is that can only have any effect for the purposes of issue estoppel in respect of Area A because that is the focus of the determination and that those findings are essential prerequisites to coming to a determination, in this case, a negative determination.  Now, your Honour, that may be contrasted with his second order, which is one of dismissal.  His Honour dismisses the proceedings in respect of Area A.

CRENNAN J:   One of the issues sought to be agitated in relation to Area B, I assume, is whether the Larrakia peoples are the relevant Aboriginal society for that part of the Larrakia lands.  Is that right?

MR KEON-COHEN:   It may be, your Honour.  It is a matter for the Larrakia people, but as Justice Mansfield recorded, they have succeeded, as has Mr Quall in the sense that his Honour found him to be partly Larrakia, they have succeeded in regard to sovereignty.

CRENNAN J:   They have the benefit of that finding in relation to sovereignty.

MR KEON-COHEN:   Yes.  They may as ‑ ‑ ‑

CRENNAN J:   That applies to Area A and Area B, that finding in relation to sovereignty.

MR KEON-COHEN:   The finding in relation to sovereignty, we submit, is merely a finding of very important fact when one applies issue estoppel.  That finding, your Honour, may be, under the Native Title Act, brought to bear by way of introducing decisions or evidence in any subsequent proceeding with respect to Area B.  Similarly, that is a double‑edged sword in respect of my client.  My learned friend says you should not allow Mr Quall to go further.  He has had every opportunity over many years.  This is a waste of Court time and resources, underlying the policy of double vexing of issue estoppel. 

In our reply, your Honour, the Court and the community have ample protections available to them, assuming issue estoppel is determined not to be relevant, for example, applications under Order 20 of the Federal Court Rules.  This may still be held, should Mr Quall seek to exercise his right to claim Area B under an application in the future to be an abuse of process, to reveal no reasonable prospects of success. 

Thus, in our submission, it should be open to Mr Quall, along with the Larrakia, who are not at this point of time facing a strike out or have been struck out, it is open to the Larrakia and, in our submission, should be open to Mr Quall to exercise their rights and further pursue a claim to Area B.  At this point of time Area B has no determination and no order in respect of it ‑ ‑ ‑

HAYNE J:   Is there an outstanding application by Larrakia interests in respect of Area B?

MR KEON-COHEN:   Perhaps we should answer your Honour no.  I am instructed they discontinued their application.

HAYNE J:   It seems to me at the moment, Mr Keon‑Cohen, your argument is one which does not invoke any exceptional development of issue estoppel.  It seems to be an argument that the only issue relevantly determined was an issue about society and continuance of society in connection with Area A.

MR KEON-COHEN:   Yes, your Honour.

HAYNE J:   If that is an understanding of the issue determined by Justice Mansfield, does that not present for your side of the record, not an issue estoppel difficulty, but an abuse of process difficulty in your seeking to agitate, in connection with Area B, a question on which you had an opportunity to be heard and adduce evidence determined in the course of reasoning to the conclusion reached in respect of Area A, namely continuation.  These are Larrakia lands.  Larrakia society does not have necessary continuity.

MR KEON-COHEN:   Your Honour, with respect we say no for two reasons.  Firstly, your Honour, there was no determination in respect of Area B ‑ ‑ ‑

HAYNE J:   I understand that.

MR KEON-COHEN:   There was a finding of very important issues of fact and law, relevant as preliminaries to applying issue estoppel on the three principles.  Secondly, your Honour, it comes to our submission concerning fact‑specific character of this jurisdiction.  It is notorious, your Honour, that native title applications are constantly amended, are constantly evolving and it is, in our respectful submission, unjust in the sense of a policy of issue estoppel to ask Mr Quall to face an application now in respect of what he might do in three years time should he by then reach trial process in the Federal Court.

Your Honour, the articulation of the issues facing – that it is said to estop Mr Quall are, if I may say so, simply paraphrasing section 223(1)(a), society, and (1)(b), extinguishment.  In our submission, for the purpose of issue estoppel, that is simply unrealistic and unjust, the reason being, your Honour, that the Act allows amendments in various provisions.  You can amend claims and they are always amended. 

The realities are that evidence changes, groups change, subgroups emerge, judges in the past have begun a hearing with one group and at the end of the hearing they have made determinations in respect of two halves of that original one group, with different rights and interests in different areas of land for each of the groups, not contemplated at the beginning of the trial, let alone when the whole application process was begun several years previously.

HAYNE J:   I think we understand that point.  Your time has gone.  Is there anything further that you wish to add?

MR KEON-COHEN:   Yes, your Honour.  In the outline of submissions, I point to the state of the authorities regarding special circumstances and submit that in the unclear state of the law, including in this Court, in my submission there is ample authority in Canada, in the Federal Court in Brisbane - Justice Pincus, in Anshun estoppel – in regard to Anshun estoppel, that special circumstances have been held to apply and, in my submission, there are factors at play in the native title in rem application that trigger those special circumstances.  Those are my submissions, your Honour.

HAYNE J:   Yes, thank you, Mr Keon‑Cohen.  Yes, Ms Brownhill.

MS BROWNHILL:   Your Honours, if I can turn first to the issue raised about Larrakia lands simply to make the submission that if the lands in Area B were the subject of a determination by Justice Mansfield in Risk I would be standing before you saying res judicata, not issue estoppel.

It seems to be accepted by my learned friend that it is open to Mr Quall, after this Court grants special leave, here is an appeal about whether or not issue estoppel applies, to then argue – sorry, it would be open for the respondent, the Crown, to then argue back in the Federal Court that by reason of Order 20, rule 4, there is an abuse of process and the application should be dismissed.  That would render the appeal entirely hypothetical, your Honours.

In relation to the abuse of process point, Justice Reeves held and the Full Court upheld or – the Full Court dismissed the appeal - that it would be an abuse of process for the applicant to be permitted to run the Top End Society case.  My learned friend now disavows any intention to run the Top End Society case, which must mean he is seeking to run the same case that was put to Justice Mansfield in Risk, but in relation to the Part B area.

In my submission, if – and this is unchallenged – it is an abuse of process to run the Top End Society case, it must be an abuse of process inevitably to run the case that we have put before Justice Mansfield.  If that is so, that abuse of process must preclude the grant of special leave.  This Court should not grant special leave where the ultimate goal of the appeal is an abuse of process.

The second reason why this case is not the right vehicle to argue the questions or the issues that my learned friend seeks to do so is because in considering whether or not there would be an abuse of process, Justice Reeves fully and carefully, and the Full Court to the extent that it was put to them, considered questions of justice, both in relation to as between the parties, the justice, and also in relation to the administration of justice generally in determining that there would be an abuse of process to run a native title claim in relation to Part B.

In respect of the administration of justice generally, to run the remainder of this native title determination application, that is the bit that was not dismissed by Justice Mansfield, would allow the possibility of conflicting Federal Court determinations as to the relevant normative society for Larrakia lands and/or as to the continued acknowledgement and observance of traditional law and custom by that society.  That would be contrary to the principle of finality of litigation and also to the public confidence in the administration of justice generally.

Your Honours, as the trial judge at first instance accepted, many millions of dollars and much court resources have been spent on the determination of those two critical issues in relation to Larrakia lands, what is the relevant society, has that society continued to acknowledge and observe traditional law and custom. 

To adopt the words of his Honour Justice Reeves, it is difficult to put into words the enormity of the task that was involved in determining those two critical issues in Risk, and his Honour refers to the fact that there were 68 hearing days, the evidence came from 47 Aboriginal witnesses, 26 other witnesses, numerous expert witnesses, thousands of pages of transcript and four years between the commencement of the hearing and a final decision being handed down.  The proper administration of justice obviously does not favour permitting an applicant to rerun the same case and to therefore address those issues which have already been so comprehensively addressed and considered.

HAYNE J:   Are you in a position to identify, in the reasons of Mr Justice Mansfield in the Risk Case where, most conveniently, we find his finding that Larrakia peoples are the relevant society for an area that includes Part B.  I point to paragraph 738 of his Honour’s reasons, where he accepted the contention of the Risk applicants that:

it would be artificial to restrict it only to those sites within the claim area.  The claim area is but part of the wider claimed ‘traditional country’ -

But I could not identify – I do not say could not identify, I did not identify where he makes a finding that Larrakia are the society for the whole of the area and that includes Part B.

MS BROWNHILL:   Your Honour, at paragraph 232 of Justice Mansfield’s decision, his Honour makes a finding about the relevant society.  That finding speaks of “the geographical area which includes the claim area”.  It does not make direct reference to the whole of the land within Part B because obviously that issue was not before him, but it is clear from a reading of his Honour’s consideration of the material that went to the question of society in relation to Larrakia lands that that consideration extended well beyond Part A in any particular or defined sense and dealt generally with the group of Aboriginal people who were in occupation of the Darwin area and its surrounds at the time of the sovereignty.

HAYNE J:   That is the difficulty to which I want to come, Ms Brownhill.  Can I try to articulate it in this way?  Let it be assumed that Mr Justice Mansfield decides that Larrakia are the people in respect of Larrakia lands.  Is it plain on what is found by Mr Justice Mansfield that that extends, if you like, to every square inch of Part B, that is, could you end up with a result where, as part of the area known as Part B, there is at the least a very large forensic hurdle in the way of the Quall claim, but there is not that hurdle in respect of one plot, one part, of Part B.  Do you see my difficulty?

MS BROWNHILL:   I do, your Honour.  My response is that the consideration of that question must be driven by what is claimed in the application, the native title determination application, which is before this Court.  If your Honours look at the area claimed and the factual basis put forward by the applicant in respect of that claim, you will see that there is no distinction in either the claim itself or the asserted laws and customs between the area in A and the area in B.  The application for a determination of native title which extends to part of what is in Area B, that is to say, this application now relates to land within a broader Area B, rests and has its foundation as the prior occupation of those lands by Larrakia people and the laws and customs acknowledged and observed at sovereignty by Larrakia people, whether you call them Larrakia or Kulumbiringin.

BELL J:   This is paragraph 23 of your submissions, is it, on application book 110 and 111?

MS BROWNHILL:   Yes, which is what was accepted by the Full Court below and there does not seem to be any issue taken with that by my learned friend, which strictly there cannot be because that is the way the application is framed.  That is the basis of this native title determination application.

HAYNE J:   That was as framed at a time – it has been in the same form since February 2001 and has not been amended since the subsequent decisions.

MS BROWNHILL:   That is right, your Honour.

HAYNE J:   Yes.

MS BROWNHILL:   Your Honours, if I could turn very briefly to address the merits of the application ‑ ‑ ‑

HAYNE J:   But effectively – sorry, Ms Brownhill, can I just pursue it a bit?

MS BROWNHILL:   Yes, your Honour.

HAYNE J:   Effectively the Quall interests are barred from seeking to amend to take account of what is decided in the Risk Cases?

MS BROWNHILL:   Because Mr Quall is a Larrakia person and he asserts that he is entitled to native title rights and interests because of the exercise and the acknowledgement and observance of traditional law and custom, and his claim extends to what has historically and anthropologically been accepted to be Larrakia lands, there is no amendment that he could possibly make that would allow or permit some different determination.  He is a Larrakia man seeking native title rights and interests on behalf of Larrakia people.

CRENNAN J:   In respect of Larrakia lands.

MS BROWNHILL:   Precisely, your Honour.

CRENNAN J:   And there was success in Risk before Justice Mansfield in relation to the finding about the Larrakia people and the time of sovereignty.

MS BROWNHILL:   Yes, that is right, your Honour.  The relevant normative Aboriginal society is the Larrakia people for Larrakia lands.  This claim extends over Larrakia lands.

HAYNE J:   But you did not move for judgment in the form of a determination of no native title.  You sought dismissal ‑ ‑ ‑

MS BROWNHILL:   In relation to Area B, your Honour?

HAYNE J:   Area B.  You sought dismissal.

MS BROWNHILL:   That is right.  That was ‑ ‑ ‑

HAYNE J:   If the argument is right, that is, the argument on your side of the record is right, would you be entitled to move for judgment for a determination under 225 that native title does not exist?

MS BROWNHILL:   Yes, we would, your Honour, but only after the Court had heard extensive evidence of the same type or kind that would have been heard by Justice Mansfield as to those two critical issues, continuity of observance of laws and customs and the relevant normative society.

HAYNE J:   But the fact that you do not move, or did not move, for judgment – what is worrying me is all you sought was dismissal.  I am not seeking to be critical about it.  I am just trying to understand what follows from that.  If there was an estoppel created, would that have entitled you to move for judgment in the form of a negative determination, and if you were not entitled to move for judgment in the form of a negative determination, is it right then to shut out the Quall interests except on the foundation of abuse of process?

MS BROWNHILL:   It would have been open to the respondents to put to the court an argument that there should be a determination that no native title exists because of issue estoppel.  That would have been open.  Instead, pursuant to Order 20, rule 4, we sought that the proceeding in its entirety be dismissed as either an abuse of process or because there was no reasonable prospect of success.  There was no reasonable prospect of success because of the application of issue estoppel.  Separately, their Honours below considered that there was also an abuse of process.  As I put to your Honours earlier, the abuse of process conclusion is still there.  It is not sought to be challenged, it remains.

HAYNE J:   Yes.

MS BROWNHILL:   Do your Honours wish to hear me on the special circumstances argument and the merits generally?  I am not sure how much time I have left.

HAYNE J:   I think not.

MS BROWNHILL:   If your Honours please.

HAYNE J:   Thank you, Ms Brownhill.  Mr Keon‑Cohen, on the abuse of process, can I put it as bluntly as this?  The Quall interests had their day in court to agitate whether Larrakia people were the relevant society for Larrakia lands and whether that society continued.  Where is the injustice in shutting them out from reagitating that, if that is the bottom line?

MR KEON-COHEN:   Because, your Honour, firstly, there is no justice in shutting them out given the reality of native title claims.  All these findings are on the evidence presented to Justice Mansfield.  That evidence is unlikely to be the same in five years time, or three years time, or 10 years time.  That is the reality, and it is entirely artificial, in our submission, to shut him out by reason of the technical requirements of issue estoppel which, in our submission, have no real application to this jurisdiction.

Now, your Honour, can I add to that this?  My learned friend relies on abuse of process.  That only went to – that was only agitated by my friend in regard to the Top End Society case.  That can have no wider ramifications than that particular claim because that was the only application made and the only application determined by Justice Reeves and by the – I beg your pardon, by the Full Court.  The Top End Society case was raised for the first time in the Full Court.

HAYNE J:   I am not sure that what you say is right.  It may be, Mr Keon‑Cohen, but it does not seem to sit well with application book page 2, line 15.

MR KEON-COHEN:   Yes.

HAYNE J:   Which seems to be a rather more general abuse of process allegation.

MR KEON-COHEN:   The finding, your Honour, was however in respect of the application made by my friend.  Abuse of process was directed at that particular Top End Society case because it was raised for the first time and late in the proceedings, whereas the Danggalaba society and the Kulumbiringin society had been raised all along.  Your Honour, secondly in reply, my learned friend cannot apply for a determination of Area B.  The only way of achieving a determination of Area B is to proceed with a claim.  There is no other way under the Act the determination may be made by a judge.  That claim awaits to be pursued. 

Next, your Honours, your Honour asked a detailed question “Do the findings of Justice Mansfield extend to all of Area B?”  Your Honour, there are extensive lists of claims and delineation of each of the areas of those claims, and I am unable to identify whether there is a pocket of land not caught by orders in respect of all of Area B, or some of Area B, but in my submission, it is unsatisfactory at the moment because the only answer to your Honour’s question is that the ruling in respect of Larrakia’s society at sovereignty was in respect of Larrakia lands in the Darwin area, no more specific than that. 

To find the specific answer is found by trolling through the detailed descriptions of all the consolidated proceedings heard in respect of Area A and dismissed in respect of Area A.  Your Honour, we submit that there is no embarrassment in respect of decisions by the Federal Court in this case should it have another opportunity to proceed because those decisions will be made on different evidence and will lead to different factual findings.  Thus, in our submission, there can be no embarrassment.  Next, your Honour ‑ ‑ ‑

BELL J:   I am sorry, Mr Keon‑Cohen, I do not understand that in relation to a conclusion, notwithstanding the favourable founding with respect to the Larrakia people at sovereignty that there had been interruption thereafter in respect of all that is encompassed within Larrakia lands, whatever that might be.

MR KEON-COHEN:   Yes.  Your Honour, in our submission, there can be no embarrassment in respect of those conclusions as to all Larrakia land because those conclusions were reached on the evidence before Justice Mansfield.

BELL J:   Yes.

MR KEON-COHEN:   There will be different evidence before a Federal Court judge in some years’ time.

BELL J:   You say that, Mr Keon‑Cohen, but how, in respect of a finding with respect to interruption do you make that proposition good beyond the bold statement of it?

MR KEON-COHEN:   With respect, your Honour, I do.  This is the experience in this jurisdiction.  The presentation and the processing of claims is a very fluid exercise.  The Act accepts that, allows for amendments, allows for very wide‑ranging determinations in response to that experience.  Your Honour, may I raise one further point ‑ ‑ ‑

HAYNE J:   Briefly, Mr Keon‑Cohen, yes.

MR KEON-COHEN:   If the Court is minded to grant leave, we would seek an opportunity to amend the grounds to bring on a Kuligowski point that concerns no positive findings being clearly made in this case and second, your Honour, my learned friend refers to difficulties of evidence as being an embarrassment.  Kuligowski states that difficulties of evidence should not be relevant when considering issue estoppel.  If your Honour pleases.

HAYNE J:   Yes, thank you.  The Court will adjourn to consider the course it will take.

AT 11.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

HAYNE J:   The issues of preclusion and whether some special or exceptional principle applies in native title cases would not conveniently fall for consideration were there to be a grant of special leave to appeal to this Court.  We express no view about those issues.

Having regard, however, to the way in which issues of occupation at sovereignty and continuity of society were argued at the trial in relation to Larrakia land, including what is called “Area A of Larrakia land”, we are not persuaded that the applicant would enjoy sufficient prospects of disturbing the actual orders made at first instance or in the Full Court in this matter.  For these reasons special leave to appeal is refused.

MR KEON‑COHEN:   If your Honour pleases.

HAYNE J:   The Court will adjourn to reconstitute.

AT 11.36 AM THE MATTER WAS CONCLUDED