Quall v Northern Territory of Australia [2011] FCA 1441 (16 December 2011)
Last Updated: 27 January 2012
FEDERAL COURT OF AUSTRALIA
Quall v Northern Territory of Australia[2011] FCA 1441
Citation: | |
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Parties: | KEVIN LANCE (TIBBY) QUALL v NORTHERN TERRITORYOF AUSTRALIA & ORS |
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File numbers: | NTD 6026 of 1998
NTD 6039 of 1998
NTD 6009 of 1999
NTD 6010 of1999
NTD 6011 of 1999
NTD 6002 of 2000
NTD 6003 of 2000 |
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Judge: | REEVES J |
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Date of judgment: | |
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Catchwords: | NATIVE TITLE – application under O 20r 4 (Rule 26.01) for summary dismissal of six native title claims and one nativetitle compensationclaim – native title determination application claimarea split into Areas A and B – see earlier determination that nonativetitle exists for Area A because traditional Aboriginal society that existed atsovereignty had a substantial interruptionin acknowledgement and observance oftraditional laws and customs – attempts to have claim group(s)restructured and expandedsince earlier decision – previous opportunityto fully litigate fundamental issues – issues substantially similar orthesame as those previously finally determined – no relevant or significantfresh evidence adduced – relitigation ofissues oppressive – abuseof court processes – contrary to finality of litigation principles
Held – the application is granted |
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Legislation: | |
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Cases cited: | |
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Date of last submissions: | 1 June 2011 |
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Place: | Brisbane (heard in Darwin) |
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Division: | GENERAL DIVISION |
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Category: | Catchwords |
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Number of paragraphs: | |
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Counsel for the Applicant: | |
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Solicitor for the Applicant: | Robert Welfare Barristers & Solicitors |
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Counsel for the Respondent: | Ms S Brownhill |
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Solicitor for the Respondent: | Solicitor for the Northern Territory |
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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| KEVIN LANCE (TIBBY)QUALLApplicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA &ORSRespondent |
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DATE OF ORDER: | |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6039 of 1998 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE OF ORDER: | 16 DECEMBER 2011 |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6009 of 1999 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE OF ORDER: | 16 DECEMBER 2011 |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6010 of 1999 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE OF ORDER: | 16 DECEMBER 2011 |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6011 of 1999 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE OF ORDER: | 16 DECEMBER 2011 |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6002 of 2000 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE OF ORDER: | 16 DECEMBER 2011 |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6003 of 2000 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE OF ORDER: | 16 DECEMBER 2011 |
WHERE MADE: | BRISBANE (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
- Theproceedings be dismissed.
- Therebe no order as to costs.
Note:Entry of orders is dealt with in Rule 39.32 of the FederalCourt Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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GENERAL DIVISION | NTD 6026 of 1998
NTD 6039 of 1998
NTD6009 of 1999
NTD 6010 of 1999
NTD 6011 of 1999
NTD 6002 of 2000
NTD 6003 of 2000 |
BETWEEN: | KEVIN LANCE (TIBBY) QUALL
Applicant |
AND: | NORTHERN TERRITORY OF AUSTRALIA & ORS
Respondent |
JUDGE: | REEVES J |
DATE: | 16 DECEMBER 2011 |
PLACE: | BRISBANE (HEARD IN DARWIN) |
REASONS FOR JUDGMENT
INTRODUCTION
- Theseapplications mark a further stage in the history of a series of native titledetermination and compensation applications lodgedunder theNative Title Act1993 (Cth) (“the Act”) by Mr Quall, as the sole member ofthe authorised applicant. To distinguish Mr Quall’s substantiveapplications from these dismissal applications, in these reasons I will refer tothose substantive applications as the Quall nativetitle applications, or theQuall applicants. In this stage, the Northern Territory of Australia, the firstrespondent, has appliedfor orders to dismiss a further seven Quall native titleapplications. On the affidavit evidence filed in support of these dismissalapplications, it appears that these seven applications constitute the remainingQuall native title applications that have been filedwith the Court. To set thescene for these dismissal applications, it is necessary to briefly recount someof the history of thevarious native title applications lodged over the pastdecade or more by Mr Quall, on behalf of the Quallapplicants.
THE HISTORY OF THE QUALL NATIVE TITLE APPLICATIONS
- Since1996, Mr Quall has lodged or filed more than 20 native title determinationapplications and one native title compensation applicationunder the Act. Mostof those applications have already been dismissed by earlier judgments of thisCourt. In chronological order,they include:Quall v Risk[2001] FCA378 (“Quall No 1”),Risk v Northern TerritoryofAustralia[2006] FCA 404 (“Risk”) andQuall v NorthernTerritoryof Australia[2009] FCA 18 (“Quall No2”).
- InQuall No 1, O’Loughlin J dismissed a Quall application inproceeding NTD 6044 of 1998. In the course of his reasons, O’LoughlinJmentioned five other native title applications Mr Quall had filed which, itappears, suffered the same fate as proceeding NTD 6044of 1998: seeQuall No 1 at [30]–[31]. Mr Quall did not appeal thatdecision.
- Riskwas a consolidated set of proceedings (NTD 6033 of 2001) involving a number ofnative title applications made by Mr Risk, as theauthorised applicant, (inthese reasons I will refer to those applications as the Risk native titleapplications, or the Risk nativetitle applicants) together with a number ofnative title applications made by Mr Quall, as the authorised applicant. Theconsolidatedproceedings related to the lands and waters that were the subjectof the various native title applications, that fell within theurban areas ofthe city of Darwin in the Northern Territory – known as “AreaA”. This designation as “AreaA” came about when all thevarious native title applications covering lands and waters within, andsurrounding, the city ofDarwin were divided into two areas: Areas A and B. Area B related to the lands and waters in the rural areas surrounding the cityof Darwin: seeQuall No 2 at [1].
- InRisk, Mansfield J dismissed 11 Quall applications that wholly or partlyrelated to the lands or waters within Area A. The final ordersmade byMansfield J inRisk, on 17 May 2006, were in the followingform:
THE COURT ORDERS, DECLARES AND DETERMINESTHAT:
- Nativetitle does not exist in relation to any part of the land or waters the subjectof the applications comprising this consolidatedproceeding as described in theattached Consolidated Proceeding Claim Area List.
AND THE COURTFURTHER ORDERS THAT:
- Theapplications comprising this consolidated proceeding (NTD6033 of 2001) bedismissed to the extent of the consolidation as follows:
(a)inrelation to proceedings NTD6017 of 1998,NTD6013 of 1998 andNTD6026of 1998, they are dismissed to the extent that those proceedings seek adetermination of native title in relation to an area referred toin the attachedConsolidated Proceeding Area List; and
(b)in relation to proceedings NTD6007 of 1998,NTD6010 of 1998,NTD6011 of 1998,NTD6012 of 1998,NTD6014 of 1998,NTD6015 of 1998,NTD6018 of 1998,NTD6019 of 1998,NTD6022 of 1998,NTD6029 of 1998, NTD6040 of 1998, NTD6001 of1999, NTD6007 of 1999, NTD6018 of 1999 and NTD6026 of 2001, they are dismissedin their entirety.
- Therebe no order as to costs.
(Emphasis added)
- TheFull Court dismissed appeals against the judgment inRisk lodged by boththe Risk native title applicants and the Quall applicants: seeRisk vNorthern Territoryof Australia[2007] FCAFC 46 (“RiskFC”). Mr Quall sought special leave to appeal the Full Court’sdecision inRisk FC to the High Court of Australia. That application wassubsequently refused: see[2008] HCA Trans 127.
- The11 proceedings emphasised above (at [5]) were all Quall native titleapplications. With the exception of proceeding NTD 6001of 1999 (seeRisk at [2]), all the others were Risk native title applications. So, insummary, inRisk, two Quall native title applications were partlydismissed and nine were entirely dismissed.
- Asappears from the orders made inRisk (see [5] above), the two Quallnative title applications that were partly dismissed were NTD 6026 of 1998and NTD 6013 of 1998. The areas identified in the Consolidated ProceedingArea List attached to the final orders inRisk (see [5] Order 2(a)above), involving those two applications, all fell within Area A.
- Theremaining parts of proceeding NTD 6026 of 1998 – which all relate tolands and waters in Area B – is one of the sevenproceedings the subjectof these dismissal applications: see at [13(a)] below. I explain immediatelybelow (at [10]–[12])how the other proceeding, NTD 6013 of 1998, wasdisposed of.
- Soonafter the High Court refused Mr Quall’s application for special leaveto appeal inRisk, the Northern Territory applied to dismiss theremaining parts of proceeding NTD 6013 of 1998. InQuall No 2, Iordered that proceeding be dismissed. In brief summary, I did that on thefollowing grounds:
(a)that Mr Quall was estopped by thedecision inRisk from pursuing the following issues:
(i)whether the Aboriginal society at sovereignty, that by the traditionallaws and customs of its normative system, possessed nativetitle rights andinterests in relation to the lands and waters in the Darwin area, includingthose within Area A, was some Aboriginalsociety other than the society of theLarrakia/Kulumbiringin peoples identified by Mansfield J inRisk;
(ii)whether there had been a substantial interruption in the acknowledgmentand observance of the traditional laws and customs ofthat society of theLarrakia/Kulumbiringin peoples since sovereignty such that native title nolonger existed in the lands and waterswithin Area A; and
(iii)whether there was a separate, more confined, traditional Aboriginalsociety at sovereignty comprising the Danggalaba clan thatby the traditionallaws and customs of its normative system, possessed native title rights andinterests in relation to the landsand waters in Area A: seeQuall No 2at [80]–[81].
(b)the application was an abuse of process because inRiskMr Quall and the Quall applicants had every opportunity to fully litigatethe issue as to what was the relevant Aboriginal societyat sovereigntypossessing native title rights and interests in the Larrakia lands in area A: seeQuall No 2 at [107].
(c)these findings applied to all Larrakia lands whether those lands fellwithin Area A or Area B: seeQuall No 2 at [86], [98] and [115].
- Onappeal, the Full Court upheld all of these conclusions: seeQuall v NorthernTerritory of Australia(2009) 180 FCR 528;[2009] FCAFC 157 (“QuallFC”). In particular, as to issue estoppel: seeQuall FC at[33]–[40] and [45]; as to abuse of process: seeQuall FC at[27]–[31] and as to the findings applying to all Larrakia lands whether inArea A or B: seeQuall FC at [41]–[45].
- TheHigh Court subsequently refused Mr Quall’s application for specialleave to appeal the Full Court’s judgment inQuall FC: see[2010]HCA Trans 186.
THE SEVEN QUALL NATIVE TITLE APPLICATIONS CONCERNED
- Havingset out a brief summary of the history of the various Quall native titleapplications that have been lodged or filed underthe Act, it is now convenientto summarise the main features of the remaining seven Quall native titledetermination and compensationapplications that are the subject of thesedismissal applications. In the chronological order in which they wereoriginally lodgedwith the National Native Title Tribunal (“NNTT”),or filed with the Court, they may be summarised asfollows:
(a)NTD 6026 of 1998 (partly dismissed in Risk: see [8] and [9] above)
(i)lodged with the NNTT on 19 August 1997.
(ii)made under ss 13(1) and 61(1) of the Act for a determination ofnative title.
(iii)native title claim group: 27 named people, four of whom, and theirdescendants, are described as: “descendants of Kulumbiringinancestorsand constitutes the Kulumbiringin according to Aboriginal law andcustom”.
(iv)so far as it remains on foot (the application as it related to NTPortions 2818, 2819 and 2820 in Area A was dismissed inRisk) it relatesto NT Portions 2821 and 2822 in Area B.
(v)amended and replaced on 11 February 2002. Prior to this amendment, theform lodged with the NNTT simply stated the applicationwas being made on behalfof the “Danggalaba Clan”.
(b)NTD 6039 of 1998
(i)lodged with the NNTT on 14 May 1998.
(ii)made under ss 50(2) and 61(1) of the Act for a determination ofcompensation.
(iii)native title claim group: Dangalaba (for consistency, henceforth inthese reasons I will adopt the spelling: “Danggalaba”)Clan being“those who have direct descent and whose rights and interests that areaffected by the acts” the subject ofthe claim. Beyond this broad andgeneral statement, the members of the native title claim group were notidentified.
(iv)relates to Lot 5647 (Cullen Bay) and Lot 5988 (Bayview Haven), both ofwhich are within the City of Darwin, ie within Area A.
(v)not amended or replaced.
(c)NTD 6009 of 1999
(i)filed with the Court on 30 September 1999.
(ii)made under ss 13(1) and 61(1) of the Act for a determination ofnative title.
(iii)native title claim group: 27 named people, four of whom, and theirdescendants, are described as: “descendants of Kulumbiringinancestorsand constitutes the Kulumbiringin according to Aboriginal law andcustom”.
(iv)relates to NT Portion 3601, Hundred of Bagot, and surrounding landwithin Area B.
(v)amended and replaced on 8 August 2001. Prior to this amendment thenative title claim group was eight named people with the surnameQuall who aredescribed as members of the “Danggalaba Clan”.
(d)NTD 6010 of 1999
(i)filed with the Court on 5 October 1999.
(ii)made under ss 13(1) and 61(1) of the Act for a determination ofnative title.
(iii)native title claim group: eight named people with the surname Quallwho are described as members of the “Danggalaba Clan”.
(iv)relates to Sections 3491, 3492, 3493, 3495, 3496 and 3497, Hundred ofStrangways, within Area B.
(v)amended and replaced on 2 November 1999, but the native title claim groupremained the same.
(e)NTD 6011 of 1999
(i)filed with the Court on 26 November 1999.
(ii)made under ss 13(1) and 61(1) of the Act for a determination ofnative title.
(iii)native title claim group: eight named people with the surname Quallwho are described as members of the “Danggalaba Clan”.
(iv)relates to Section 2413(A), Hundred of Cavenagh, within Area B.
(v)amended on 2 December 1999, to name the Northern Territory as arespondent, but otherwise it remained the same.
(f)NTD 6002 of 2000
(i)filed with the Court on 21 February 2000.
(ii)made under ss 13(1) and 61(1) of the Act for a determination ofnative title.
(iii)native title claim group: eight named people with the surname Quallwho are described as members of the “Danggalaba Clan”.
(iv)relates to Sections 1706 and 1714, Hundred of Guy, within Area B.
(v)amended and replaced on 20 March 2000, but the native title claim groupremained the same.
(g)NTD 6003 of 2000
(i)filed with the Court on 21 February 2000.
(ii)made under ss 13(1) and 61(1) of the Act for a determination ofnative title.
(iii)native title claim group: eight named people with the surname Quallwho are described as members of the “Danggalaba Clan”.
(iv)relates to NT Portion 4732, Hundred of Guy, within Area B.
(v)amended and replaced on 20 March 2000, but the native title claim groupremained the same.
SOME DISTINGUISHING FEATURES OF SOME OF THESE SEVEN APPLICATIONS
- Forthe purpose of these dismissal applications, this summary requires some furtherelaboration. First, proceeding NTD 6039 of 1998is different to the other sixproceedings in at least four relevant respects: it is an application for thedetermination of compensationrather than native title; it does not name oridentify who the members of the native title claim group are, viz the DanggalabaClan,cf “eight named people with the surname Quall who are described asmembers of the ‘Danggalaba Clan’” (above);it relates to landfalling within Area A instead of Area B; and it was lodged before the1998 amendments to the Act (which relevantlycame into effect on 30 September1998) and has not since been amended or replaced by an application in a formwhich complies withthose amendments and theNative Title (Federal Court)Regulations 1998. All the others do comply with these regulations, evenNTD 6026 of 1998, which was also originally lodged with the NNTT before the1998 amendments to the Act.
- Secondly,proceedings NTD 6026 of 1998 and NTD 6009 of 1999 contain a difference tothe other five proceedings. While they bothbegan as Danggalaba Clanapplications, they were subsequently amended (see below) so that the nativetitle claim group was statedto be named descendants of Kulumbiringin ancestors.In the other five proceedings the native title claim group is described as eightnamed members of the Danggalaba Clan. I include here NTD 6039 of 1998,although, as I have noted above, the members of the Danggalabaclaim group inthat proceeding are unnamed and unidentified.
- Thesetwo proceedings and a number of others, including NTD 6013 of 1998, wereamended by leave given by Mansfield J in October 2001to change the native titleclaim group to the Kulumbiringin: seeQuall No 2 at [33]. Theseamendments occurred about 11 months before theRisk trial began inSeptember 2002. As an aside, since NTD 6009 of 1999 relates to land andwaters entirely within Area B, and thereforeit was not a part of theRisk trial, it is not apparent to me why that application was amended tochange the native title claim group from the Danggalaba Clanto theKulumbiringin claim group. Nor is it apparent to me why the native title claimgroup in NTD 6018 of 1998 and NTD 6019 of1998, both of which were apart of theRisk trial, remained as the eight named members of theDanggalaba Clan.
- Ihave specifically mentioned NTD 6013 of 1998 above because that proceedingand NTD 6026 of 1998 are the two proceedings that partlysurvived theorders of Mansfield J inRisk: see at [8] above. Moreover, from theprocedural history of NTD 6013 of 1998 set out inQuall No 2 at[5]–[53], the introduction of the Kulumbiringin native title claim groupappears to have been an aberration that occurredin relation to most (but asnoted above, not NTD 6018 and 6019 of 1998: seeRisk at [10]) ofthe proceedings that were determined by Mansfield J inRisk. I havedescribed this as an aberration because, as appears from that proceduralhistory, during final submissions inRisk, Mr Quall elected not topursue the Kulumbiringin case and instead he reverted to the Danggalaba Clancase: seeQuall No 2 at [38]. This appears to have occurred without anyamendment being made to those proceedings that identified the Kulumbiringin asthe native title claim group. This directly affected NTD 6026 of 1998 and,I infer, NTD 6009 of 1999. In other words, from thenon both theseproceedings were regarded as being Danggalaba Clan applications as they had beenat the outset and as the other fiveof these seven Quall native titleapplications have been throughout.
- Whileit is not clear from the procedural history why this aberration occurred, itseems to have come about shortly after two tellingblows were dealt to theDanggalaba Clan case. The first was the conclusion of Gray J in the Kenbi LandClaim Report delivered inDecember 2000 that the Danggalaba Clan was not a localdescent group under theAboriginal Land Rights (Northern Territory) Act 1976(Cth): seeQuall No 2 at [13]. And the second was the decision ofO’Loughlin J in proceeding NTD 6044 of 1998 (see at [3] above) to dismissthoseproceedings because of, among other things, Mr Quall’s repeatedfailure to identify “with appropriate particularity”the DanggalabaClan he claimed to represent: seeQuall No 2 at [19]–[30].
- Despitethis, as I have already noted above, by the time of closing submissions inRisk, the position taken by the Quall applicants in relation to theidentity of the native title claim group in all of their native titleapplications was that it was the eight named members of the Danggalaba Clan, allof whose surnames were Quall. It is also worthrecalling that this DanggalabaClan case ultimately failed inRisk because, as the Full Court observedinRisk FC (at [177]):
As with the Larrakia people, it was held that the current laws and customs ofthe Danggalaba clan were not “traditional”in the sense required bys 223(1)(a) of the Act: [796]. More fundamentally, however, it was concluded(i) there was uncertaintyor inconsistency about the composition of theDanggalaba clan and the rules governing its structure: [797]-[801] ; (ii)there wasno satisfactory foundation for finding that the Quall appellantspractise and enjoy certain rights and interests which arise underlaws andcustoms which only they have inherited from, or have been passed on to them by,their predecessors back to sovereignty: [797]-[798]; and (iii) there was nosatisfactory foundation for concluding that the Danggalaba laws and customsreflected or derivedfrom the normative system of the Aboriginal society whichexisted at sovereignty: [798].
- Thismay explain a further aberration in the way the Quall applicants have describedthe native title claim group. Before the FullCourt inRisk FC, the mainthrust of their case was that the native title claim group, and therefore therelevant traditional Aboriginal society atsovereignty possessing native titlerights and interests in relation to the lands and waters of Area A, wasvariously described as“the Top End society” or “people of theTop End”: seeQuall No 2 at [44], referring toRisk FC at[116]. The Full Court rejected that case on the basis that it was not put toMansfield J inRisk: seeQuall No 2 at [47]. The Quallapplicants pursued the same case in their High Court special leave applicationinRisk: see at [6] above.
- However,inQuall No 2, they began a further reversion to the Danggalaba Clancase. They did that by adopting all three alternative forms of the nativetitleclaim group they had put forward thus far, viz the Danggalaba Clan, theLarrakia/Kulumbiringin and the Top End society: seeQuall No 2 at [71]. As will emerge later in these reasons, this reversion is now complete in that,in all these seven applications, the Quallapplicants have sought to put forwardan expanded or restructured version of the Danggalaba Clan, known as theDanggalaba Land OwnersGroup, or DLOG, as the native title claim group and, moreimportantly, the relevant traditional Aboriginal society at sovereigntypossessing native title rights and interests in relation to the lands and watersof the Darwin area.
- Thirdly,in relation to the distinguishing features of some of these seven applications,apart from NTD 6039 of 1998 (as to whichsee [14] above), the other sixproceedings relate to land and waters in Area B.
THE CONTENTIONS ON THE DISMISSAL APPLICATIONS
- Notsurprisingly, in its original submissions, the Northern Territory relied heavilyon the decisions inQuall No 2 andQuall FC. Based upon thosedecisions, it submitted that, since these seven Quall native title applicationsseek to agitate the same issuesas were decided against the Quall native titleapplicants inRisk, Mr Quall should now be prevented from doing thateither because an issue estoppel arises, or because that course would beoppressiveand therefore involve an abuse of process.
- Inhis original submissions, Mr Quall submitted, in very short summary, that: the principles of issue estoppel did not apply innative title proceedings; andthe fresh evidence he had adduced from Dr Day, an anthropologist,demonstrated it would not be an abuseof process for him to pursue these sevennative title applications because, in them, he sought to pursue a differentissue from thatraised and determined inRisk.
- Havingmentioned the evidence of Dr Day, it is convenient to describe how thatcame about. Following the Northern Territory’soriginal submissions,Mr Quall filed two affidavits by Dr William Bartlett Day. The secondaffidavit repeated much of the contentsof the first and then included a largequantity of additional material. Among other documents, it had annexed to it areport preparedby Dr Day and a genealogy he had prepared in 1973 for thepurposes of the Aboriginal Land Rights Commission 1973. In his secondaffidavitDr Day explained that he had obtained a copy of that 1973 genealogy in 2009from the National Archives in Canberra.
- Ihave referred to the “original submissions” of the parties in theparagraphs above to highlight a distraction thathas occurred in these dismissalapplications in relation to issue estoppel. After I initially reserved mydecision on these dismissalapplications, the Full Court delivered its decisioninDale v Western Australia[2011] FCAFC 46 (“DaleFC”). InDale, at first instance (seeDale v WesternAustralia(2009) 261 ALR 21;[2009] FCA 1201 (“Dale”)),McKerracher J dismissed a native title determination application in WesternAustralia on the grounds that the applicants,the WGTO People, “wereestopped from asserting that they form a society that has existed continuouslysince sovereignty becauseof the key ‘finding’ made inDaniel”: seeDale FC at [53].Daniel (seeDanielv Western Australia[2003] FCA 666 (“Daniel”)), likeRisk, was a consolidated set of proceedings combining a number of nativetitle determination applications that had been made by differentapplicants overthe same area of land. InDaniel, the trial judge determined, amongother things, that “the claims to native title over the overlappingportions of the NY ConsolidatedClaim Area by the WGTO claim group as the thirdapplicants and by the YM group claim as the second applicants weredismissed”:DaleFC at [21].
- InDale FC, the Full Court dismissed the appeal by the Dale applicantsagainst the judgment of McKerracher J. However, it did not do so onthe basisof an issue estoppel, but rather on the basis that the proceedings were an abuseof process. It held the proceedings werean abuse of process because the WGTOclaim group was seeking to relitigate the issues that had been determinedagainst them inDaniel: seeDale FC at [114]. Of significance tothese proceedings, in the course of its reasons for decision, the Full Courtappeared to express somereservations about whether issue estoppel could applyto a determination of native title proceedings made under the Act. Specifically,it said this:
- Howeverwe should first say something about the judgment of the Full Court inQuallFCwhich McKerracher J relied on, as have the respondents inthis appeal. In that appeal, no suggestion was made that issue estoppelhad noapplication in relation to native title cases. The appeal proceeded on theassumption that it did. The applicability of theprinciple was not in issue.Indeed it is faintly apparent from the reasons of the Full Court at [37] that aquestion might ariseabout the applicability of the principle given that theparties in whose favour the principle was said to operate had not all beenparties to the earlier proceedings in which the issue founding the estoppel hadbeen decided: seeRisk v Northern Territory of Australia[2006] FCA 404.The Full Court there observed:
At this point we note thatat para 17 of the respondent’s written submissions it is stated that“there was one party tothe remainder of the application the subject ofthis appeal who was not a party inRisk”.At the hearing of theappeal no mention was made of this party and no point was made in relation tothe party.
- Oursignificant reservations about the applicability of issue estoppel to nativetitle claims rest on the statutory framework whichestablishes the proceduresfor hearing such application and the character of any determination itself ifultimately made. When consideringin proceedings whether an issue estoppel mightarise, any statute underpinning the proceedings can be important.
- AsGummow J observed inRe Pollard; Ex parte Lensing Management Co PtyLimited[1991] FCA 640;(1991) 33 FCR 284, a matter arising under theBankruptcy Act 1966(Cth):
The term “estoppel”has been described as a label which covers a complex array of rules spanningvarious categories:The Commonwealth of Australia v Verwayen (supra) perMason CJ at 409. But what the various species of estoppel have in common is thatthey are the creatures of the commonlaw or equity (or both) and as such mustoperate consistently with the terms of any statute which has an impact upon thecontroversyin the course of which reliance is placed upon an estoppel;Walshv Commercial Travellers’ Association of Victoria[1940] VicLawRp 42;(1940) VLR 259 at 268-269, G Spencer Bower and AK Turner, pp 139-142.Accordingly, it is necessary in the present case to look more closely at thestatutory setting which both creates and controls the “matter” inrelation to which the creditor takes the estoppel point.
- Underthe NT Act any application made under s 61 might be the subject of an orderunder s 67(2), (as set out earlier), with the resultthat part of thatapplication together with other applications (or parts of them) concerning thesame area are dealt with together.Experience tells us that this is common, asoccurred in the present case. The effect of an order under s 67(2) willtypically beto create separate proceedings concerning a particular area withrespondents which are only a subset of the respondents to the initialapplication or applications on which the order operates. Any determination madeconcerning the area will bind the world at large.It is, in effect, a judgmentin rem: seeWik Peoples v Queensland[1994] FCA 967;(1994) 49 FCR 1. Thedetermination will bind persons beyond parties to the proceedings. Because ofthe special characteristics of a judgment in rem,it operates outside the usualfield of operation of the principle of issue estoppel requiring, as the latterdoes for its engagement,that the same parties (or their privies) were partiesin the proceedings in which the issue was earlier determined. That is, ajudgmentin rem involves the determination of the status of the person or thingand binds the world at large and not simply the parties tothe litigation:ReLawrence: Ex parte Burns(1985) 9 FCR 9 andWall v the King; Ex parteKing Won (No 1)[1927] HCA 4;(1927) 39 CLR 245 at 291 per Isaacs J.
- Evenaccepting, as McKerracher J noted, that the principle can operate in relation tosome but not all parties to a proceeding, itis difficult to see how it canoperate in that way in relation to proceedings under the NT Act. Assume, ascontended in these proceedings,that an issue was resolved in earlier litigationbetween the State and the WGTO raising an issue estoppel between those partiesbutwhich had not been resolved as against other parties such as the KM claimgroup. It is not as if the State can then, on the strengthof that estoppel,obtain judgment in its favour while leaving other parties who are not thebeneficiary of the estoppel to contestthe issue. The capacity of a party inordinary litigation to obtain judgment in its favour leaving unaffected theresolution of rightsbetween other parties to the same litigation underpins theproposition mentioned to by McKerracher J referring toTaylor v AnsettTransport Industries Ltd(1987) 18 FCR 342 that an issue estoppel canoperate to the benefit of some though not all parties to particular litigation.That cannot happen, aswe see it, in proceedings under the NT Act. That is, asearlier discussed, because the ultimate judgment (the determination) doesnotoperate against named parties. It is not possible to give judgment in thiscontext against a party relying on the estoppel andnot against another partywho cannot rely on the estoppel and fails on the issue on which the estoppelcould have otherwise operated.
- Afterthe Full Court delivered its decision inDale FC, I asked the parties tomake supplementary submissions as to the effect of that decision, if any, onthese dismissal applications. In its written supplementary submissions, theNorthern Territory submitted, in summary, that the Full Court’s decisioninDale provided considerable support for its abuse of process ground andthe Full Court’s observations on the issue estoppel groundwere notbinding, were flawed and should not be followed.
- Onthe abuse of process ground, the Northern Territory submittedthat:
(a)the same principles were applied inDale FC (at[112]–[113]) as were applied inQuall No 2 (at [100]–[102]and [104]).
(b)a number of parallels existed between the fresh evidence relied upon bythe WGTO inDale FC and Mr Quall’s reliance on the evidence ofDr Day in this matter. They included that:
(i)like the WGTO claim group, Dr Day’s evidence is directed todemonstrating that the findings of Mansfield J inRisk were factuallywrong, even if justified on the evidence produced to him.
(ii)the only explanation offered for not presenting Dr Day’sevidence before Mansfield J inRisk, ie that Mr Quall had no funding topay Dr Day and Dr Day was otherwise occupied with paid employment, wasquite similar to the explanationadvanced by the WGTO people inDale. The Northern Territory pointed to the Full Court’s conclusion inDaleFC that “there is no explanation why the additional affidavit evidencewas not adduced before the trial judge”.
(c)Further, the evidence of Dr Day does not assist Mr Quallbecause his evidence was merely a reassertion of the Danggalaba Clancaseunsuccessfully litigated by Mr Quall inRisk.
- Onthe issue estoppel ground, the Northern Territory submitted that the essence ofthe Full Court’s reasoning inDale FC was that, since issueestoppel only binds the parties to the previous litigation, it could not applyin native title judgments whichare decisionsin rem because, if it did,it would bind the whole world, not just the parties to the previous litigation. It submitted that none of theauthorities relied upon by the Full Court inDale FC supported this reasoning and that the Full Court had reasonedfrom a false premise.
- Itsubmitted that the requirements for establishing ares judicata (whetherin relation to cause of action estoppel, issue estoppel orAnshunestoppel) are: that the decision was judicial; that it was pronounced; that theTribunal had jurisdiction over the parties and thesubject matter; that thedecision was final; that the decision was made on the merits; that the decisiondetermined a question thatwas raised in the later litigation; and that theparties or their privies are the same,or the earlier decision wasinrem. This later submission relied upon the observations set out by HandleyKR inSpencer Bower and Handley, Res Judicata(4th ed, 2009) (LexisNexis para 1.02).
- TheNorthern Territory submitted that the concept ofres judicata inAustralia involves an estoppel that follows the litigation and adjudication upona cause of action and the merger of that causeof action into a final judgment. It submitted that, withres judicata, the extent to which the finaljudgment binds others to prevent them relitigating the same cause of actiondepends upon whether thejudgment is against the world at large (in rem),or against a particular person (in personam). Thus, so the NorthernTerritory submitted, the availability of the estoppel in subsequent proceedingsdoes not depend upon whetherthe judgment in the previous proceedings wasinrem orin personam. It added that the doctrines ofresjudicata and issue estoppel rest upon the same policy foundations, referringto the decision of French J inSpalla v St George Motor Finance Ltd (No6)[2004] FCA 1699 at[59]–[68] (“Spalla”).
- Inhis supplementary written submissions, Mr Quall submitted that, while theFull Court’s decision inDale FC in relation to issue estoppel didnot form part of theratio decidendi of that decision, it was persuasive.He submitted that thein rem effect of native title determinations toldstrongly against issue estoppel arising in relation to such determinationsbecause theywere applied to the world at large and therefore prevented personswho were not named in proceedings; and who had not had an opportunitytoventilate a claim in those proceedings, from pursuing any such claim in thefuture. Otherwise, Mr Quall repeated the detailedsubmissions he had madeon estoppel issue in his original submissions, including the specialcircumstances applying to native titleproceedings, that tell against issueestoppel operating in relation to native title determinations.
- Asto abuse of process, Mr Quall submitted that the judgment inDale FCaffirmed the same principles, but each case required careful consideration ofits factual circumstances. He submitted that he wasnot seeking to relitigatethe same issues as had been determined inRisk andQuall No2.
- Inoral submissions, Mr Quall essentially maintained the same position asoutlined above. However, in its oral submissions the NorthernTerritory, whilemaintaining its reliance on the issue estoppel ground, changed its primaryemphasis to the abuse of process ground. Thus, it submitted that theseproceedings could be dismissed on the abuse of process ground alone, withoutaddressing the estoppelground. Bearing in mind this change of emphasis by theNorthern Territory, I will proceed to consider the abuse of process groundfirst, and only turn to consider the issue estoppel ground if I am not satisfiedthat the abuse of process ground applies. I mightadd that I have set out thecontentions on the issue estoppel ground in some detail in deference to theconsiderable time and effortboth counsel devoted to thatissue.
CONSIDERATION
The principles on an application for summary dismissal
- Thecentral issue raised by the parties’ contentions on the abuse of processground is whether the issues the Quall applicantsseek to agitate in these sevenproceedings are essentially the same as those decided against them inRisk and therefore involve a re-litigation of those issues. Related tothis central issue is the effect of the evidence of Dr Day thathas beenadvanced by Mr Quall. Before I turn to consider these issues I willbriefly outline the principles relevant to an applicationto summarily dismiss aproceeding as an abuse of process.
- Becauseall these proceedings were commenced before 1 December 2005, the NorthernTerritory has relied upon O 20 r 4(2)(b) of theformerFederalCourt Rules, which allows for a proceeding to be dismissed generally if itis an abuse of the processes of the Court. That particular rule hasbeenreplaced by Rule 26.01(d) of the newFederal Court Rules which cameinto effect on 1 August 2011. However, Rule 1.04 of the new Rules makes itclear that the former Rules apply in thisinstance.
- Theprinciples in relation to the summary dismissal of proceedings are set out inQuall No 2 at [73]–[74]. As I observed there, those principlesdictate that: “I must take ‘exceptional caution’ toensurethat Mr Quall and the Quall applicants are not deprived of the right tosubmit a real and genuine controversy for determination,which has not yet beenfully and finally determined on its merits.” And further that: “Ishould approach [these] strikeout application[s] on the version of any evidencethat is favourable to Mr Quall and the Quallapplicants.”
The principles on abuse of process
- InQuall No 2 (at [100]–[102]) I also set out the relevant principlesas to what amounts to an abuse of the Court’s processes and theauthorities from which I extracted those principles. Rather than replicatethose paragraphs ofQuall No 2 here, I will summarise their contents. The principles are that:
(a)the underlying concerns in an abuse ofprocess application of the kind being pursued here are that a person should notbe troubledtwice for the same cause and public policy considerations requirethere to be a finality to litigation: seeQuall No 2 at [100];
(b)the circumstances in which abuse of process may arise are extremelyvaried and not limited to any fixed categories: seeQuall No 2 at [101];and
(c)the power to summarily dismiss proceedings for abuse of process is apower that is to be exercised very sparingly and only inexceptionalcircumstances: seeQuall No 2 at [101].
- Theprinciple set out in [39(b)] was recently confirmed by the High Court inMichael Wilson & Partners Limited v Nicholls[2011] HCA 48 at[89]. In that judgment, the High Court went on to refer to the conclusions of McHugh JinRogers v The Queen(1994) 181 CLR 251 at 286;[1994] HCA 42 to theeffect that:
Although the categories of abuse of procedure remain open, abuses of procedureusually fall into one of three categories: (1) thecourt’s proceduresare invoked for an illegitimate purpose; (2) the use of the court’sprocedures is unjustifiably oppressiveto one of the parties; or (3) the use ofthe court’s procedures would bring the administration of justice intodisrepute.
- Whilstrecognising these categories are not closed, based on the observations I havemade in [39(a)] above, the present applicationsfall into both the second andthird categories described by McHugh J.
- Inrelation to the more specific question whether a proceeding is an abuse ofprocess because it seeks to relitigate an issue thathas been determined inearlier proceedings, I referred inQuall No 2 at [102] to thenon-exhaustive list of factors identified by Giles CJ inState Bank of NewSouth Wales v Stenhouse(1997) Aust Torts Reports 81-423(“Stenhouse”) at 64,098, and adopted by French J inSpallaat [70]. They bear repeating here. Theyare:
(a)the importance of the issue in and to the earlier proceedings, includingwhether it is an evidentiary issue or an ultimate issue;
(b)the opportunity available and taken to fully litigate the issue;
(c)the terms and finality of the finding as to the issue;
(d)the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of theevidence and the reason why it was not part of the earlierproceedings; all partof –
(f)the extent of the oppression and unfairness to the other party if the issueis relitigated and the impact of the relitigationupon the principle of finalityof judicial determination and public confidence in the administration ofjustice; and
(g)an overall balancing of justice to the alleged abuser against the matterssupportive of abuse of process.
Conclusions in Risk – ultimate issues of paramount importance
- AsI did inQuall No 2, I will turn to consider each of theseStenhouse factors in turn, as they apply to these dismissal applications.But before doing so, it is first necessary to identify the issuesthat weredetermined in the earlier proceedings, that is, by Mansfield J inRisk. The most convenient way to do that is to set out the paragraphs of my decisioninQuall No 2 where I have described and summarised the conclusions onthose issues. The best summary appears inQuall No 2 at [80] asfollows:
- theLarrakia peoples comprised the Aboriginal society at sovereignty that by thetraditional laws and customs of its normative systempossessed rights andinterests in relation to the lands and waters in the Darwin area, including AreaA;
- therehas been a substantial interruption in the acknowledgement and observance of thetraditional laws and customs of the Larrakiapeoples since sovereignty such thatnative title does not now exist for the lands and waters in Area A;and
- therewas not a separate, more confined, Aboriginal society at sovereignty that by itstraditional laws and customs had rights andinterests in relation to the landsand waters in the Darwin area, comprising the Danggalaba clan.
- At[41]–[42] ofQuall No 2, I set out the relevant paragraphs ofRisk where these conclusions appear.
- Iturn then to the first of theStenhouse factors: the importance of theseconclusions inRisk. I considered this factor inQuall No 2 andconcluded (at [106]) as follows:
InRisk, Mansfield J ultimately held that native title did not exist forthe Larrakia lands and waters in Area A. That ultimate conclusiondepended uponhis Honour’s application of the definition of native title in s 233 of theNT Act, as explained by the High CourtinYorta Yorta, to the facts asdisclosed by the evidence before him.After undertaking that process,Mansfield J made two critical findings which I have already set out above (see[41]-[42] and summarisedby [80]). Each of these findings was, in my view, acrucial part of the ground work for the ultimate conclusion made by MansfieldJthat native title did not exist in Area A. Therefore, in my view, each of thesefindings was an ultimate issue as defined by DixonJ inBlair v Curran.Furthermore, I consider that each of these findings was of paramountimportance inRisk because they were fundamental to that ultimateconclusion.
(Emphasis added)
- Theemphasised parts of this statement require some clarification. First, MansfieldJ actually made three critical findings, orconclusions, inRisk. Two ofthem are set out inQuall No 2 at [41] and the third is set out at [42]. The three conclusions are then set out in summary form at [80]: see at [43]above. Secondly,the reference to the judgment of Dixon J inBlair vCurran[1939] HCA 23;(1930) 62 CLR 464 relates back to [104] ofQuall No 2 where Isaid this:
This first matter requires a consideration of what constitutes an ultimateissue. In my view, an ultimate issue is one that formsthe ingredients of thecause of action in a proceeding, or the “title to the rightestablished”. It encapsulates theactual ground upon which the existenceof any right in the proceedings was negatived, or any point which was necessaryto decideand was actually decided as a part of the ground work of the decisionitself: seeBlair v Curran[1939] HCA 23;(1930) 62 CLR 464 (‘Blair vCurran’) at 532-533 per Dixon J andKuligowski at[60]-[62].
- So,the relevant conclusions inRisk included the ultimate conclusion thatnative title did not exist for the Larrakia lands and waters in Area A,along with the actualground, or groundwork, upon which that ultimate conclusionwas based. The first was the positive conclusion that the traditionalAboriginal society at sovereignty possessing native title rights and interestsin relation to the lands and waters in the Darwinarea, including Area A,was the society of the Larrakia Peoples, viz the conclusion at [80(a)] ofQuall No 2 at [43(a)] above. The second was the negative conclusion thatthere had been a substantial interruption in the acknowledgement andobservanceof the traditional laws and customs of the Larrakia People since sovereignty,viz the conclusion at [80(b)] ofQuall No 2. And, finally, the negativeconclusion that there was not a separate traditional Aboriginal society atsovereignty comprising theDanggalaba Clan, viz the conclusion at [80(c)] ofQuall No 2.
- Withthese clarifications, given that exactly the same issues are involved here as inQuall No 2, I consider my observations in that decision apply with equalforce to these dismissal applications. In other words, the ultimateconclusioninRisk and each of the three conclusions upon which it was based wereall conclusions on issues of paramount importance inRisk.
Ample opportunity to fully litigate fundamental issue in Risk
- Thesecond of theStenhouse factors is: the opportunity available and takento fully litigate the issue inRisk. To properly address this factor, itis first necessary to identify what issue or issues the Quall applicantswish to pursue inthese seven proceedings and to then determine whether they hadthe opportunity to fully litigate those issues inRisk. The best way todo that is to go to Mr Quall’s written submissions where he hasdefined what he says those issues are.
- Inhis written submissions, Mr Quall began by equating the Danggalaba Clanwith a group called the DLOG. However, in oral submissions,Mr Louizou,for Mr Quall, said that the DLOG was different from the Danggalaba Clan: “insofar as it encapsulates those groupsthat we have not yet been able toclearly identify as being of the Danggalaba Clan”. A little later, whenasked to describethe distinguishing features, Mr Louizou said: “Theland owner group is still being collated. It’s an evolving group.”When pressed on this, he said: “The Danggalaba Clan is referred to byvarious reports that you would be aware of, an identifiedgroup. The DanggalabaLand Owners Group is made up of other members either connected genealogically orotherwise. Now, I say it’sbeing collated because if you go to whatDr Day put into this report.” In his written submissions,Mr Quall stated that theDLOG comprised the followingpersons:
(a)Tommy Lyons:Grandfather to Ms Raylene Singh andMs Stephanie Thompson;
(b)Crab Billy:Kathlen Presley descendant;
(c)Blanchie:Deja Batcho daughter: Tibby Quall grandson includingfamilies;
(d)Frank Secretary:considered long term resident of Kulaluk Community andfamily; and
(e)King George.
- Basedon this, Mr Quall claimed that the 1973 genealogy annexed toDr Day’s affidavit created a link between the Tommy Lyonsgroup, whowere successful in the Kenbi Land Claim Report, and “the Darwin familiesof the DLOG”. He also relied uponthe fact that Ms Raylene Singh(the granddaughter of Tommy Lyons) had made a number of public statementsidentifying herself as “a‘true Danggalaba’ and TO[Traditional Owner] who represents the Kenbi Danggalaba Association”. Inthis regard,Mr Quall pointed to the material included in, and annexed to,Dr Day’s affidavits. It is apparent from all this that Mr Quallis now seeking to set up the DLOG as an expanded and restructured version of theDanggalaba Clan. In other words, Mr Quall is notseeking to abandon theDanggalaba Clan, but to enlarge its membership to include the descendants ofTommy Lyons.
- Moresignificantly, Mr Quall’s written submissions disclose that the Quallapplicants wish to claim that the DLOG was the relevanttraditional Aboriginalsociety at sovereignty possessing native title rights and interests in the landand waters of the Darwin area. This means, as Mr Quall’s writtensubmissions clearly show, it has become necessary for the Quall applicants tochallengemany of the conclusions made by Mansfield J inRisk, includingthe one which denies the existence of the Danggalaba Clan. That extends to boththe specific negative conclusion thatthe Danggalaba Clan does not exist and thepositive conclusion that the Larrakia Peoples comprised the traditionalAboriginal societyat sovereignty possessing native title rights and interestsin relation to the land and waters in the Darwin area. There are numerousexamples of this in Mr Quall’s written submissions. They include thefollowing:
(a)In one part the submissions describe three “ultimate issues” inthese proceedings as follows:
Issue One
Whether the Larrakia people comprised the Aboriginal society at sovereignty. The Applicants dispute the assertion as it relatesto the Darwin area on thefollowing basis:
(i)The Darwin area is not clearly stated or mapped to be adequately known tothe extent to which Darwin area is to include eitherLarrakia or DLOG;
(ii)Challenge the assertion and finding that the Larrakia were the soleAboriginal society at sovereignty in the Darwin area;
(iii)The normative system as determined by Justice Mansfield inRisk isnot that of the Larrakia society.
Issue Two
Substantial interruption in the acknowledgment and observance of traditionallaws and customs of the Danggalaba. The Applicant’sdispute:
(i)That there has been substantial interruption in the acknowledgement andobservance of their traditional laws and customs;
(ii)That the Larrakia are the only identified people who can claim that theymaintained a normative systems [sic] by which to claimDarwin area;
(iii)The construction of the nature of Danggalaba as presented and outlined byJustice Mansfield inRisk and later applied inQuall,
Issue Three
The Applicant’s disputes [sic] the finding inRisk:
(i)That the Danggalaba does not exist as a group, clan, society or in any otherconstruction in accordance with the NTA;
(ii)That there is not a separate or more confined society of theDanggalaba;
(iii)There was not an aboriginal society at sovereignty defined as Danggalaba;and
(iv)by its traditional laws and customs the Danggalaba had no rights andinterests in Darwin or the Darwin area,
On the following basis:
(i)The nature and construction of the Larrakia and DLOG as determined by thegenealogy set out in Dr Day’s material whichhighlights discrepanciesin evidential material and findings based on this evidential material;
(ii)Disputes the nature and construction of the Larrakia and DLOG in relationto family groupings;
(iii)No evidence has been properly presented or adduced to establish or denysuch a group existed to the exclusion of all others;
(iv)The findings by Justice Mansfield were based on evidence presented by theNLC for the purpose of establishing a model favourableto the construction ofLarrakia and did not acknowledge theDLOG.
(b)In another part of the written submissions, the issues are described asfollows:
There are separate issues which were not adequatelyaddressed inRisk orQuall which now arise as a result ofDr Day’s material. They are:
(a)Whether the DLOG has its laws and customs rooted in pre-Sovereignty and howthey have not been adopted pre-Sovereignty throughconnection with the group inDarwin area;
(b)Whether with the assertion of Ms Singh as being a true Danggalabasuggests substantial interruption or not on the basis of herclear recognitionas a traditional owner by Justice Gray in Kenbi;
(c)how is the DLOG to be defined in the context of new material and thereforenew evidence as outlined in the material; and
(d)in what way does (a) and (b) affect the recognition of communal, group orindividual right to native title as set out in s.223(1)as it relates to theDLOG;
(c)And finally, in still another part, the issues were described asfollows:
(a)New evidence supports the claim that the DLOGexisted pre-Sovereignty;
(b)New evidence relating to the composition of DLOG was not presented inRisk andQuall;
(c)There is a change in circumstances surrounding the composition of theDLOG;
(d)There is a substantial difference in the anthropological model and evidencethat was led by the NLC inRisk based on Dr Day’sMaterial;
(e)New evidential material which draws attention to the development of aclassification of the DLOG which is yet to be determinedby a Court. Thiscreates a new issue in relation to:
(i)classification of the DLOG;
(ii)construction of a society constituted or characterised by DLOG and inparticular its customs and traditions; and
(iii)classificatory system of membership of the DLOG for the purpose ofestablishing connection to land for the requirement of nativetitle.
(f)...
(g)...
(h)Creates uncertainty in relation to the evidence heard and determined inRisk, accepted byQuall and was the basis for the determination inKenbi;
(i)The query over who has openly identified as a Danggalaba and those who havenot;
(j)Introduces new evidence in relation to Ms Raylene Singh, as someone whohas identified herself as “true Danggalaba”and holds herself out tobe representative of the Kenbi Danggalaba Association;
(k)The Dariniki Association clearly shows that in order to be member one has tobe a Danggalaba which creates a new set of evidentialcircumstances yet to befully examined as they relate to the DLOG.
- Fromthese excerpts from Mr Quall’s written submissions it is plain thatthe three main issues the Quall applicants now wishto pursue in these sevenproceedings are as follows:
(a)first, they wish to put forward anexpanded or restructured version of the Danggalaba Clan, viz the DLOG, whichincorporates themembers of the Tommy Lyons group;
(b)secondly, they wish to pursue a claim that the DLOG was the traditionalAboriginal society at sovereignty possessing native titlerights and interestsin relation to the land and waters in the Darwin area; and
(c)finally, they wish to claim that the DLOG has suffered no substantialinterruption in the acknowledgement and observance of itstraditional laws andcustoms since sovereignty.
From this summary it can be seen that the fundamental underlying issue is: what was the relevant Aboriginal society at sovereigntypossessing native titlerights and interests in relation to the land and waters in the Darwin area?
- Thenext step in considering this secondStenhouse factor is to determine theopportunity available and taken to fully litigate these issues inRisk. On this aspect, I can do no better than to repeat the observations I made inQuall No 2 (at [107]–[108]) as follows (cross-referencingomitted):
- Therecan be little doubt, in my view, that Mr Quall and the Quall applicants hadevery opportunity to fully litigate the issue asto what was the relevantAboriginal society at sovereignty possessing rights and interests in theLarrakia lands in Area A. TheQuall applicants became the second applicants inRisk and therefore were a party to the consolidated proceedings inRisk. Indeed, one of the main purposes of s 67 of the NT Act is torequire that all claims over the same area are dealt with togetherin the sameproceedings. Having become a party, the nature and extent of Mr Quall’sparticipation in the hearing in Risk wassummarised by the Full Court as follows(Risk FC at [119]):
It is important to emphasise that Mr Quall was not represented at the hearingbefore his Honour. Nonetheless, as his Honour indicated([34] and [798]), hegave evidence (albeit of “relatively short compass”); he tenderedsome documents, though these didnot include an anthropological report preparedfor the proceedings; he cross-examined witnesses; and he made submissions. HisHonournoted (at [797]) that his evidence was, in effect, the only evidencedirectly supporting his claim.
- Afterthe decision inRisk, the Quall applicants took the opportunity to appealthat decision to the Full Court and then took the opportunity to seek specialleave to appeal to the High Court. Mr Quall and the Quall applicants havetherefore taken the opportunity to pursue their case/sat every level of thefederal courts system.
- Andfurther (at [110]–[113]) as follows (cross-referencing omitted):
- Notwithstandingthese complaints, I consider the record shows that Mr Quall, and the Quallapplicants, were able to fully litigatethe issue as to what was relevantAboriginal society at sovereignty possessing rights and interests in Larrakialands. The mostobvious indication of this is that both the Quall applicantsand the Risk applicants were jointly successful in establishing thattherelevant Aboriginal society at sovereignty possessing those rights and interestswas the Larrakia peoples. Furthermore, theaspect upon which this native titleapplication failed in the consolidated proceedings inRisk, ie asubstantial interruption in the continuous acknowledgement and observance of thelaws and customs of the Larrakia peoples sincesovereignty, was a joint failurewith the Risk and Quall applicants. In this respect, I consider it issignificant that the Riskapplicants were legally represented and assisted bythe NLC throughout, so this joint failure occurred notwithstanding that the Riskapplicants were legally represented.
- Theother area of failure for the Quall applicants was the rejection by Mansfield Jof their claim that the Larrakia/Kulumbiringinsociety did not include the Riskapplicants and was limited to the Danggalaba clan (originally theLarrakia/Kulumbiringin case),comprised of the Quall applicants. In my view,this failure on the part of the Quall applicants was secondary to the jointsuccessand joint failure described above. Moreover, it is debatable, in myview, whether the Quall applicants’ failure to establishthe Danggalabaclan case was due to a lack of legal representation, or due to a fundamentaldefect in that case.
- Asto the latter, I consider it is significant that the Danggalaba clan case putforward by Mr Quall and the Quall applicants hadalready failed in the KenbiLand Claim, albeit in a different statutory regime. Furthermore, one of thenative title applicationslodged by Mr Quall and the Quall applicants, basedupon the Danggalaba clan, had already been dismissed in Quall becauseO’LoughlinJ found that Mr Quall could not adequately identify what theDanggalaba clan was. Finally, Mr Quall himself changed from the Danggalabaclancase to the Larrakia/Kulumbiringin case, in October 2001, and then changed backto the Danggalaba clan case, during final submissionsinRisk in 2004,after four witnesses he called in support of the Larrakia/Kulumbiringin case,failed to give evidence in support of thatcase. The description of this eventby Mansfield J inRisk at [797] and by the Full Court inRisk FCat [176], suggests that Mr Quall, and perhaps his sister, ended up being theonly ones supporting the Larrakia/Kulumbiringin case,and that all the othermembers of the Larrakia/Kulumbiringin, including the witnesses Mr Quall hadcalled, supported the Risk applicantsabout the identity of the relevantAboriginal society at sovereignty possessing rights and interests in Larrakialand.
- Next,I consider it is significant that despite his lack of legal representationduring the course of these proceedings, Mr Quallwas able to produce a detaileddescription of his Danggalaba clan case in this native title application, ie theMay 2000 amendments. He was then able to produce a detailed description of hisLarrakia/Kulumbiringin case in this native title application, at the timeof theOctober 2001 amendments. In both these versions, Attachment S containeddetailed references to the writings of historiansand anthropologists. In myview, these documents demonstrate that Mr Quall and the Quall applicants wereable, despite their lackof legal representation, to outline what their case wasand to make considered decisions as to what form their case should take....
- Ofcourse, since my decision inQuall No 2, Mr Quall has had yet afurther opportunity to use every level of the federal courts system by appealingthat decision to the FullCourt and seeking special leave to appeal to the HighCourt: see at [11]–[12] above. It should also be recalled that thefundamental underlying issue throughout all this process was that prescribedabove. This is so whether the group comprising thatsociety was the DanggalabaClan, the Larrakia/Kulumbiringin or the Top End society. For these reasons, Iconsider Mr Quall had anample opportunity inRisk, which he hascompounded since, to fully litigate the fundamental issue as to what was therelevant Aboriginal society at sovereigntypossessing native title rights andinterests in relation to the land and waters in the Darwinarea.
Final findings in clear terms in Risk
- Thethird of theStenhouse factors is the terms and finality of the findingon the issue. This obviously refers to the finding in the earlier proceedings,viz inRisk. Again, on this aspect, I can do no better than reproduce myobservations inQuall No 2 (at [115]) as follows (cross-referencingomitted):
As I have already observed above, I consider the findings made by Mansfield J inRisk are in clear terms and they deal directly with the variouscomponents of the definition of native title in s 233 of the NT Act, asexplained by the High Court inYorta Yorta. Those findings followed anexhaustive examination of a large body of evidence and they resulted in thefinal orders made by MansfieldJ to the effect that native title does not existfor Larrakia lands in Area A. In my view, the findings and orders of MansfieldJ are final, in the sense that they foreclose on any other Aboriginal societybeing able to establish that the laws and customs underits normative systemgave rise to rights and interests in Larrakia lands in Area A. Indeed, theyconstitute a judgmentin rem that no native title exists in those lands. While the decision inRisk does not have the same status in relation tothe lands in Area B, I do not consider that detracts from the final effect ofthe findingson the ultimate issues upon which that decision is founded. Specifically, that the Larrakia peoples were the relevant Aboriginalsociety atsovereignty that possessed rights and interests in Larrakia lands. I considerthis constitutes a final finding as tothe relevant Aboriginal society thatpossessed rights and interests in those lands whether they fell within Area A orB.
Issues in the two sets of proceedings relevantly the same or similar
- Thenext of theStenhouse factors requires an examination of the identitybetween the relevant issues in the two sets of proceedings. This obviouslyrequiresa comparison between the issues determined by Mansfield J inRisk (see at [43] above) and the issues the Quall applicants wish topursue in these seven native title applications (see at [53] above).
- Inmy view, there can be little doubt that these two sets of issues are, insubstance, very similar, if not the same. To begin with,the fact thatMr Quall has seen it necessary to challenge each of the three criticalconclusions inRisk provides a strong indication in itself, this is so. This reflects the fact that whether it is the Danggalaba Clan, theLarrakia/Kulumbiringinor the Top End society case, the fundamental questioninvolved in all these is what was the relevant Aboriginal society at sovereigntypossessing native title rights and interests in relation to the land and watersin the Darwin area. Secondly, for the reasons Igave inQuall No 2 (at[86] and [115]), I consider that the conclusions inRisk relevantly applyto the lands and waters in the Darwin area whether they fell within Area Aor Area B. In summary, those reasonswere that:
(a)in all theQuall native title applications, the lands and waters the subject of themhave been described in the same, or similar, form throughout,ie variously asthe Larrakia or Kulumbiringin lands or country;
(b)the splitting of the various native title applications into two areas didnot relevantly change the substantive character of thelands and waters thatwere the subject of them;
(c)Mr Quall (or his counsel) referred to the lands and waters asLarrakia lands or country repeatedly throughout the proceedingsinRisk;and
(d)the finding inRisk that the Larrakia Peoples were the relevantAboriginal society at sovereignty that possessed rights and interests inLarrakia landsconstituted a final finding as to the relevant Aboriginal societythat possessed rights and interests in those lands whether theyfell withinArea A or Area B.
- Thirdly,and further to the above, the various areas of land and waters covered by eachof these seven native title applicationsare variously within, or in closeproximity to Area A. They are shown on the map which is Annexure“A” to these reasons. The following may benoted:
(a)the lands and waters in proceeding NTD 6039 of 1998fall within Area A and therefore the area covered by the conclusions inRisk: see [13(b)] above;
(b)the lands and waters covered by NTD 6026 of 1998 (as withNTD 6013 of 1998 dealt with inQuall No 2) overlapped Areas Aand B: see at [13(a)] above;
(c)the lands and waters covered by NTD 6009 of 1999 are, at theirclosest point, approximately 3 kilometres from the boundary ofArea A andthe land and waters covered by NTD 6003 of 2000, which are the furthestfrom that boundary, are located approximately25 kilometres from it: see at[13(c) and (g)] above.
- Forthese reasons, subject to my further observations about NTD 6039 of 1998,ie the compensation application, immediately below,I consider that the issuesdetermined by Mansfield J inRisk and the issues the Quall applicantswish to pursue in these seven native title applications, are substantivelysimilar, or the same.
- Asnoted above, NTD 6039 of 1998 is distinguishable from the other six nativetitle applications because, among other things, itis an application for thedetermination of compensation. As the Full Court observed inJango vNorthern Territory of Australia(2007) 159 FCR 531;[2007] FCAFC 101(“Jango”): “That requires the antecedent determinationwhether there were in existence at some relevant time native title rightsandinterests whose extinguishment or impairment has given risen to the compensationright”: see at [83].
- Todetermine what the relevant time was, it is necessary to examine the applicationin NTD 6039 of 1998 in some more detail. Thatreveals that thecompensation sought is for the extinguishment of native title rights andinterests by “the development ofCullen Bay and ... Bay View Haven”.The application refers to theCullen Bay Marina Act 1992 (NT) and goes onto assert that “Before they developed Cullen Bay and Bay View Haven, allof our rights and interests subjectto [sic] these lands and waters have beenimpaired and extinguished byCullen Bay Marina Act 1992 and theValidation of Titles and Actions Act 1994 (NT).”
- TheNorthern Territory submits that it is apparent from the application inNTD 6039 of 1998 and its attachments that the acts thatare alleged to haveextinguished the native title rights and interests concerned “are thelegislative and/or administrativeacts pursuant to which the claimed portions ofland were subdivided and developed into the residential subdivisions and marinaareaknown as Cullen Bay and Bay View Haven”. The Northern Territoryfurther submits that the earliest of those two developmentswas the Cullen Baydevelopment and therefore that the earliest that the legislative and/oradministrative acts concerned could havetaken place was on and after 18December 1992, when theCullen Bay Marina Act 1992 came into effect. Iaccept that submission.
- Itfollows that, to make out the claim for compensation made in NTD 6039 of1998, the Quall applicants would have to establish thatfrom at least 18December 1992 the undefined Danggalaba Clan was the relevant traditionalAboriginal society at sovereignty possessingnative title rights and interestsin relation to the identified lands and waters in the Cullen Bay and Bay ViewHaven developments.
- Theexpression “native title” or “native title rights andinterests” is defined in s 223(1)–(4) ofthe Act asfollows:
(1)The expressionnative title ornative title rights andinterests means the communal, group or individual rights and interestsof Aboriginal peoples or Torres Strait Islanders in relation to landor waters,where:
(a)the rights and interests are possessed under the traditional lawsacknowledged, and the traditional customs observed, by theAboriginal peoples orTorres Strait Islanders; and
(b)the Aboriginal peoples or Torres Strait Islanders, by those laws andcustoms, have a connection with the land or waters; and
(c)the rights and interests are recognised by the common law of Australia.
(2)Without limiting subsection (1),rights and interests in thatsubsection includes hunting, gathering, or fishing, rights and interests.
(3)Subject to subsections (3A) and (4), if native title rights and interests asdefined by subsection (1) are, or have been at anytime in the past,compulsorily converted into, or replaced by, statutory rights and interests inrelation to the same land or watersthat are held by or on behalf of Aboriginalpeoples or Torres Strait Islanders, those statutory rights and interests arealso coveredby the expression native title ornative title rights andinterests.
(3A)Subsection (3) does not apply to rights and interests conferred bySubdivision Q of Division 3 of Part 2 of this Act (whichdeals with statutoryaccess rights for native title claimants).
(4)To avoid any doubt, subsection (3) does not apply to rights and interestscreated by a reservation or condition (and which arenot native title rights andinterests):
(a)in a pastoral lease granted before 1 January 1994; or
(b)in legislation made before 1 July 1993, where the reservation or conditionapplies because of the grant of a pastoral lease before1 January1994.
- InWestern Australia v Ward[2002] HCA 28;(2002) 213 CLR 1;[2002] HCA 28(“Ward”), the High Court (Gleeson CJ, Gaudron, Gummow andHayne JJ) explained what was involved in establishing native title rightsandinterests as defined in s 223(1) of the Act as follows (at[18]):
The question in a given case whether (a) is satisfied presents a question offact. It requires not only the identification of thelaws and customs said tobe traditional laws and customs, but, no less importantly, the identification ofthe rights and interestsin relation to land or waters which are possessed underthose laws or customs. These inquiries may well depend upon the sameevidence as is used to establish connection of the relevant peopleswith theland or waters. This is because the connection that is required by par (b) of s223(1) is a connection with the land orwaters “by those laws andcustoms”. Nevertheless, it is important to notice that there are twoinquiries required bythe statutory definition: in the one case for the rightsand interests possessed under traditional laws and customs and, in theother,for connection with land or waters by those laws and customs.
(Emphasis in original)
- Aspectsof this were elaborated upon inMembers of the Yorta Yorta AboriginalCommunity v Victoria (2002)214 CLR 422;[2002] HCA 58 (“YortaYorta”) where the majority (Gleeson CJ, Gummow and Hayne JJ) madethese observations:
- Thatbeing so, the references, in pars (a) and (b) of the definition of native title,to "traditional" law or custom must be understoodin the light of theconsiderations that have been mentioned. As the claimants submitted,"traditional" is a word apt to refer toa means of transmission of law orcustom. A traditional law or custom is one which has been passed fromgeneration to generationof a society, usually by word of mouth and commonpractice. But in the context of theNative Title Act, "traditional"carries with it two other elements in its meaning. First, it conveys anunderstanding of the age of the traditions: the origins of the content of thelaw or custom concerned are to be found in the normative rules of the Aboriginaland Torres StraitIslander societies that existed before the assertion ofsovereignty by the British Crown. It is only those normative rules thatare"traditional" laws and customs.
- Secondly,and no less importantly, the reference to rights or interests in land or watersbeingpossessed under traditional laws acknowledged and traditionalcustoms observed by the peoples concerned, requires that the normative systemunder which the rights and interests are possessed (the traditional laws andcustoms) is a system that has had a continuous existenceand vitality sincesovereignty. If that normative system has not existed throughout that period,the rights and interests whichowe their existence to that system will haveceased to exist. And any later attempt to revive adherence to the tenets ofthat formersystem cannot and will not reconstitute the traditional laws andcustoms out of which rights and interests must spring if they areto fall withinthe definition of native title.
(Emphasis in original)
- Itfollows from the above matters that the antecedent determination mentioned inJango, that has to be made before any right to compensation is made out,involves determining the same issues as have to be determinedin any nativetitle determination application. InQuall No 2, I accepted, as accurate,the summary of those matters provided by Ms Brownhill on behalf of theNorthern Territory as follows (at[55]):
- atsovereignty, there was a group of Aboriginal people having rights and interestsin relation to certain land or waters;
- atsovereignty, those rights and interests were possessed under an identified bodyof laws and customs;
- atsovereignty, that body of laws and customs comprised a normative system of aparticular “society” (or “community”);
- atsovereignty, that society was united in and by its acknowledgement andobservance of the body of laws and customs;
- acknowledgementand observance of the pre-sovereignty body of laws and customs has continued,substantially uninterrupted, by eachgeneration of that society sincesovereignty;
- theclaimants today acknowledge and observe a body of laws and customs which issubstantially the same normative system as that whichexisted at sovereignty;and
- thepre-sovereignty normative society has continued to exist throughout the periodsince sovereignty as a body united in and by itsacknowledgement and observanceof the laws and customs.
- Sincethese are the same matters that the Quall applicants have to establish inrelation to their other six native title applications,there is no relevantdistinction between the issues they have to prove in them and the issues theyhave to prove in their compensationapplication NTD 6039 of 1999.
- Beforeleaving NTD 6039 of 1999, I should record a matter the Northern Territoryraised about that application, but did not appearto press. That is, as notedabove (at [14]), the application does not comply with the provisions of the Actand Regulations thatprescribe the requirements for a valid application. Forexample, it does not comply with the authorising provisions of s 61 or theNative Title (Federal Court) Regulations 1998. It may therefore beliable to be struck out on this ground alone. However, that would deal with theform of the application ratherthan its substance and I suspect that is why theNorthern Territory has not pressed a dismissal on thatground.
Dr Day’s evidence neither fresh nor relevantly significant, and nosatisfactory explanation given for its late production
- Next,I come to one of the central planks of the Quall applicants’ defenceof these dismissal applications, ie the plea offresh evidence constituted bythe affidavits of Dr Day. This is the fifth of theStenhousefactors. It requires an examination of the nature and significance of thatevidence and the reason why it was not put forward bythe Quall applicantsinRisk. In other words, the cogency of the explanation, if any, thatthey have given for that. First, I will briefly describe the importantaspects of Dr Day’s two affidavits.
- Thecentre point of them is the 1973 genealogy. Its origins are identified inDr Day’s second affidavit asfollows:
In 1973 at the request of the Aboriginal Land Rights Commissioner Mr JusticeWoodward in association with Larrakia elder Topsy SecretaryI prepared aLarrakia genealogy. I did not keep a copy of this genealogy. Annexed to thisAffidavit and marked “WBD1”is a copy of the saidgenealogy.
- Inhis second affidavit, Dr Day summarised what he said is the significance ofthe 1973 genealogy for the Quall applicants’case, asfollows:
The significant points of the rediscovered 1973 genealogy are:
(a)the genealogy supports the claims of the Batcho family that there weremistakes in the genealogies prepared by the Northern LandCouncil (NLC).
(b)the genealogy is evidence that cognative [sic] descent was a recognisedprinciple of descent.
(c)the genealogy confirms the membership of the danggalaba [sic] clan.
(d)the genealogy shows the names of those who Topsy Secretary identified asLarrakia before the so called revival of the Larrakiapeople in the late 1970sand 1980s.
- Followingthis, most of Dr Day’s two affidavits are devoted to describing howthe structure and membership of the DanggalabaClan are said to be affected bythe contents of the 1973 genealogy. In that process Dr Day has sought tochallenge numerous factualfindings and conclusions made by Mansfield J inRisk and, less relevantly, for present purposes, Gray J in the Kenbi LandClaim Report. The following provides a brief, but significantexample of theformer from Dr Day’s second affidavit:
- MrJustice Mansfield (2006: Para 800) wrote: ‘...I am not satisfied thatthere is a separate more confined society of Aboriginalpersons comprising thesecond applicants who, alone among those who comprise what Mr Quall calledthe wider ‘Larrakia languagegroup’, possess rights and interestsunder ‘traditional’ laws and customs by which they have a connectionto theland and waters of the claim area.’
- The1973 genealogy supports Mr Quall’s assertion that there is a separatemore confined society than the NLC model of the wider‘Larrakia languagegroup’.
- Inmy view, there is a number of difficulties with the Quall applicants’reliance on this material and, in particular, the1973 genealogy. The first isthat I do not consider it is fresh evidence in the sense that it was notpreviously known or encountered. In his first affidavit, Dr Day makes itplain that both the existence and significance of the 1973 genealogy were knownto, anddiscussed by, Mr Quall and himself since approximately 2000. Hesaid:
Tibby Quall has often questioned me about this genealogy during the past decadebut until May 2009 I was not able to locate it.
- Furthermore,the suggestion (above) that: “until May 2009 [Dr Day] was not ableto locate it” is somewhat qualifiedin his second affidavit. There, hesaid that the file containing the 1973 genealogy was closed by National Archivesof Australiauntil 16 August 2004. He then annexed a letter dated 23 June 2004from National Archives of Australia which, among other things,offered access toits pre-1 January 1974 records upon application. It is to be inferred thatDr Day did not make any such applicationuntil approximately five yearslater in 2009. Indeed, so much appears to be clear from the succeedingparagraph of his second affidavit,where hesays:
Another relevant file ‘Transcript of Notes of Discussion, Kulaluk, Darwin,Northern Territory, 02 June 1973’ was previouslymarked ‘not yetexamined’ and as a result of my payment and request is now marked‘Open, date of decision 14 May2009’. The discussions were betweenBobby Secretary, Captain Bishop, Tommy Lyons, Bill Day (self) and others and MrJusticeWoodward, the Aboriginal Land RightsCommissioner.
- Takinginto account this background, I consider it is significant that neitherDr Day nor Mr Quall has provided any explanation asto why the 1973genealogy was not put forward in support of the Quall applicants’ caseuntil late 2010. Mr Quall himself hasnot filed any affidavits in thesedismissal applications. When I raised this matter with Mr Quall’scounsel at the hearingof these applications, he pointed to the explanationoffered by Dr Day. However, the only hint of an explanation fromDr Day’stwo affidavits is the following statement in his firstaffidavit:
Tibby Quall has often spoken to me about his case but I was unable to commitmyself owing to my full time employment and lack offunds. As a semi-retiredconsulting anthropologist, I am now more able to give some attention toMr Quall’s claim, althoughmuch needs to bedone.
- Ido not consider this provides a satisfactory explanation as to why the 1973genealogy was not obtained and put forward in supportof the Quallapplicants’ case soon after it apparently became available from NationalArchives of Australia in 2004. For example,Dr Day does not say when heceased full-time employment, or when his lack of funds ceased, or when he wasfirst able to give attentionto Mr Quall’s claim. He also does notexplain why he was seeking access to the 1973 genealogy from National Archivesof Australiain June 2004 and why he did nothing between that date and May orAugust 2009 to obtain access to that document.
- Quiteapart from these considerations, I do not consider the 1973 genealogy has thesignificance that Mr Quall and Dr Day have puton it. Even if it wereassumed for the purposes of this argument that the 1973 genealogy providesevidence of an expanded membershipof the Danggalaba Clan by reference to acognatic descent model and/or certain descent lines that were incorrectlydescribed by theRisk applicants inRisk, that will not provide anyevidence to the effect that the Danggalaba Clan, so restructured or expanded,was a society or communityat sovereignty with a nominative system of laws andcustoms that gave rise to rights and interests in the land and waters in theDarwin area. The primary evidence about these matters would have to come fromMr Quall and the other members of the restructuredor expanded DanggalabaClan, not from Dr Day. As I have already observed above, Mr Quall didnot submit any affidavit in supportof his opposition to these dismissalapplications.
- Nonetheless,Mansfield J heard from Mr Quall and numerous other witnesses inRisk. He summarised the effect of that evidence inRisk asfollows (at [797]):
Mr Quall was clearly not supported by other persons (other than his sister) who,he said, were members of the Danggalaba clan. Hissister Dianne Quall also wasless precise than Mr Quall about the independent significance of the Danggalabaclan and the detailsof its laws and customs. Other persons who Mr Quall saidwere members of the Danggalaba clan, some of whom he described as the seniorsorelders of that clan, gave evidence about the existence of the wider groupcomprising the first applicants. Their evidence didnot explain with anyprecision the separate independent existence of the Danggalaba clan. Nor didthey regard it as the currentultimate repository of the laws and customs oftheir predecessors in the Darwin area. They did not describe the laws andcustomsof the Danggalaba clan as distinct from those of the first applicants. Mr Quall’s evidence (in effect as the only evidencedirectly supportingthe claim) did not go into sufficient detail to establish a separate receivedset of laws and customs of theDanggalaba clan.
- Basedon that evidence, his Honour decided that, as well as there being: “uncertainty, or inconsistency, about the compositionof the Danggalabaclan and the rules governing its structure. There is also, on the evidence, nosatisfactory foundation for findingthat the second applicants practise andenjoy certain rights and interests which arise under laws and customs which theyonly haveinherited from or had passed on to them by their predecessors back tosovereignty”: seeRisk at [798]. It follows that, even if the1973 genealogy addresses the difficulties the Quall applicants encountered withthe compositionand structure of the Danggalaba Clan, that will not overcome theobvious deficiency in the evidence going to show that the DanggalabaClan wasthe relevant Aboriginal society at sovereignty possessing native title rightsand interests in relation to the land andwaters in the Darwin area.
- Beforeleaving this fifthStenhouse factor, I should record that, consistentwith the principles I have set out above at [38], I have endeavoured to approachthe evidenceof Dr Day in his two affidavits on the basis that is mostfavourable to Mr Quall and the Quall applicants. For this reason, I haveignored the Northern Territory’s submissions in relation toDr Day’s qualifications and alleged partiality as an expertwitness,and its submissions about the alleged contradictions and inaccuracies in hisaffidavits.
- Forall these reasons, I do not consider that the so-called fresh evidence comprisedin Dr Day’s two affidavits can properlybe called fresh evidence, oris relevantly significant. And nor do I consider any satisfactory explanationhas been given as towhy it was not produced earlier. Of course, if the 1973genealogy had been obtained and put forward in about mid-2004, it may havebeenpossible for the Quall applicants to re-open their evidence inRiskand tender it and/or put it before the Full Court inRisk FC as freshevidence. In all these circumstances, I do not consider the Quall applicantsshould now be permitted to relitigate theissues that were determined inRisk based upon this claim of fresh evidence.
- Iturn then to the last two of the sevenStenhouse factors. The words“all part of” at the end of para (e) of theStenhousefactors (see at [42] above) make it clear that the preceding fiveStenhouse factors are to be assessed in a balancing exercise between theoppression and unfairness said to be occasioned to a party by therelitigationof an issue, and the prejudice and unfairness said to arise if a litigant isunable to submit a real and genuine controversyfor determination on its merits.This balancing exercise must also take account of the finality of litigationprinciple and maintainingpublic confidence in the administration of justice. In other words, a court should not allow litigants to needlessly use thecourt’sresources to endlessly pursue a cause when they have already had afair opportunity to submit that cause to a final determination. In my view,these concerns have a particular focus in the native title system in thiscountry where almost all of the parties are,to some extent, if not totally,funded from the public purse.
- InQuall No 2 I addressed these factors and the balancing exercise involvedat [118]–[122]. While those observations were directed to theTop Endsociety case that the Quall applicants then wished to pursue, I consider theyapply with even more force to the expanded,or restructured, Danggalaba Clancase that the Quall applicants now wish to pursue in these seven applications. This is so becausea form of the Danggalaba Clan case has been at the foundationof the Quall applicants’ case in all of the 20-odd native titledetermination applications that they have lodged or filed over the past decadeand a half, including these seven native title applications,the oldest of whichhas now been on foot for more than 14 years. It was also the foundation oftheir involvement in the Kenbi LandClaim from the early 1980s.
- Ido not consider it necessary to repeat here in full the factors I identified inQuall No 2. In summary they were that it would be oppressive to theNorthern Territory, it would be a needless waste of both the Court’sandthe public’s resources and it will be damaging to the reputation of thejudicial system if the Quall applicants were tobe allowed to keep litigatingtheir cause in these seven native title applications. InQuall No 2 (at[118]) I said: “At some point, there must be an end to this litigationand I consider it has now been reached”. This observation was made almostthree years ago so I consider it applies with even greater forcenow.
CONCLUSIONS
- Forall these reasons, I consider it would constitute an abuse of process if theQuall applicants were permitted to further pursuethese seven native titleapplications. In all the circumstances I have outlined above, I am satisfied ofthis to the high degreeof certainty required to justify their seven nativetitle applications being dismissed on that ground. Accordingly I propose tomake orders to that effect in each proceeding.
- Havingreached this conclusion, it is not necessary for me to consider the alternativeissue estoppel ground: see [35] above.
I certify that the preceding eighty-nine (89) numbered paragraphs are atrue copy of the Reasons for Judgment herein of the HonourableJusticeReeves. |
Associate:
Dated:16 December 2011
