Mansfield J
In this matter, 7 applications for extensions of time to file notices of appeal were refused on the grounds that the issues had already been decided and no new evidence had been tendered.
Each application concerned a proposed appeal from the decision of the Court in Quall v Northern Territory of Australia (2011) 286 ALR 374 (‘the primary decision’). In the primary decision, the native title claims in the rural areas surrounding Darwin were summarily dismissed on the basis that their continuation would amount to an abuse of process.
Mr Quall, on behalf of the Danggalaba clam (‘the applicant’), sought to appeal from this dismissal but did not apply within the time limit. This meant that he needed an extension of time for leave to appeal. The proposed grounds of appeal were extensive and included claims that the primary judge:
misapplied the principles of abuse of process;
wrongly concluded that the applicant had every opportunity to fully litigate the issue in the earlier decision, Risk v Northern Territory [2006] FCA 404 (‘Risk’); and,
failed to have regard to the weight of new expert evidence.
Consideration
The Court rejected the applicant’s contention that the primary judge had misapplied the principles of abuse of process to native title claims, stating that it is well settled that abuse of process applies to claims under the Native Title Act 1993 (Cth).
Having regard to the finality of litigation, the promotion of public confidence, the just and efficient allocation of the Court’s resources and the balancing of justice between the parties, and the right of any person to present a real and genuine controversy to be determined on its merits, the Court agreed with the primary judge in concluding that the applicant had already put forward the question whether the Danggalaba Clan was the relevant Aboriginal society at sovereignty and that claim had been rejected in Risk.
The Court agreed with the primary judge that the evidence the applicant relied on was not new evidence in any sense, but evidence which was available to be called. Moreover, Justice Mansfield agreed with the primary judge’s finding that the material relied on by the applicant would not overcome the deficiency in the evidence going to show that the Danggalaba Clan was the relevant Aboriginal society at sovereignty possessing native title rights and interests in relation to the lands and waters in the Darwin area.
Conclusion
Justice Mansfield held that the proposed appeal had no prospect of success and the applications for an extension of time to appeal were refused.