In this matter, McKerracher J ordered that
the appeal be dismissed
submission/s if any as to any additional relief to which the respondents contend that they may be entitled not exceeding three pages to be filed and served within 28 days
submission/s in response, not exceeding three pages are to be filed and served within 28 days thereafter and
unless the Court otherwise orders, any remaining issue will be determined on the papers.
[1] The appellant (the Wunna Nyiyaparli) appeals from a judgment in Petersen on behalf of the Wunna Nyiyaparli v State of Western Australia [2016] FCA 1528. The primary judgment was delivered on 16 December 2016. The notice of appeal was filed on 30 January 2017 complaining of a breach of natural justice in the Wunna Nyiyaparli being precluded from leading evidence at the hearing. The central issue the applicant wishes to agitate is a denial of natural justice. The two active opponents in the appeal are the State of Western Australia and the Nyiyaparli people. The Nyiyaparli people apply for the appeal’s dismissal summarily on the basis of lack of competency. The State adopts the arguments advanced by the Nyiyaparli people.
[2] McKerracher J in determining the application on behalf of the Full Court as a single Judge does so pursuant to s 25(2B) of the Federal Court of Australia Act 1976 (Cth).
[3] The notice of objection to competency having been filed, the Wunna Nyiyaparli sought to file a supplementary or amended notice of appeal on 4 May 2017. It was not accepted for filing but McKerracher J permitted it to be filed in Court without prejudice to the Nyiyaparli being able to pursue their application.
McKerracher J made the following observations: [4] The Wunna Nyiyaparli have been confused as to the relevant procedure and allowance was made for them as struggling self-represented litigants. However the assistance needed to be commensurate so as not to occasion any prejudice to the other party or parties involved in this litigation. In this instance the Nyiyaparli have been trying to proceed with a native title claim for some time and are being impeded in the progress of the claim in part by the fact that the Wunna Nyiyaparli have failed to or been unable to comply with the directions of this Court.
[5] ‘The primary Judge was resolving a dispute about the existence of a native title claim group. The dispute affected three proceedings in the Court. The first was the application for a determination of native title filed in 1998 on behalf of the Nyiyaparli in respect of an area of about 40 square kilometres in the Pilbara district of Western Australia including the town of Newman (the 1998 claim).’ [6] The second proceeding was an application filed in 2012 ‘on behalf of the Wunna Nyiyaparli People’ (the Wunna Nyiyaparli claim). ‘The Wunna Nyiyaparli claim sought a determination of native title in respect of an area, coinciding substantially if not precisely with the Roy Hill pastoral lease. The lease is wholly within the area to which the 1998 claim relates.’ [7] ‘The third proceeding was that of the Nyiyaparli in respect of two separate areas contiguous with the south western boundary of the area the subject of the 1998 claim.’
[8] The essential dispute being dealt with by His Honour was the exclusion of members of the Coffin family from the claim group on whose behalf the claim was brought by the Nyiyaparli. ‘The Wunna Nyiyaparli are descendants of William (Bill) Coffin (Bill Coffin junior) and it is asserted that he obtained his Nyiyaparli identity through his paternal grandmother Maggie. Maggie was the mother of Bill Coffin’s Junior’s father also named William (Bill) Coffin (Bill Coffin Senior). It was that claim that put Maggie’s status as a Nyiyaparli person at the heart of the Wunna Nyiyaparli claim. The Wunna Nyiyaparli asserted in addition that Bill Coffin Junior was generally identified within the Western Desert society as a Nyiyaparli man and that he had been accepted as Nyiyaparli by other Nyiyaparli.’
[9] The three proceedings are in the docket of Barker J, but His Honour directed that the preliminary question be heard separately from any other questions in the Nyiyaparli and Wunna Nyiyaparli proceedings namely:
was the paternal grandmother (that is father’s mother) of William (Bill) Coffin (born circa 1903), being a woman described by the Wunna Nyiyaparli applicant as Maggie, a Nyiyaparli person, that is, a person descended from Nyiyaparli ancestors or possessing rights and interests in the land and waters comprised in the area of the Wunna Nyiyaparli claim and with a connection to those land and waters, both in accordance with tradition [sic] laws acknowledged and traditional customs observed by the Nyiyaparli People?
Orders were made by Barker J that the participating parties in the trial of the separate question be the Wunna Nyiyaparli applicant, The Nyiyaparli applicant, the State and any of the respondents who gave notice of intention to participate. Additionally, orders were made programming the matter and with respect to the manner in which the hearing of the separate question was to be conducted. Barker Made orders as to the effect of the Court’s determination of the separate question in these terms:
In the event that the Court answers the separate question negatively, and decides that the paternal grandmother of William (Bill) Coffin ...being a woman described by the Wunna Nyiyaparli applicant as Maggie, was not a Nyiyaparli person, that is, not a person descended from Nyiyaparli ancestors or possessing rights and interests in the land and waters comprised in the area of the Wunna Nyiyaparli claim and with a connection to those land and waters, both in accordance with traditional laws acknowledged and traditional customs observed by the Nyiyaparli:
the claimant application in WAD 22 of 2012 should be dismissed; and
[Ms] Roy, [Ms] Drage and [Mr] Coffin shall be removed as respondents to WAD 6280 of 1998.
[28] The orders to be made if the Wunna Nyiyaparli applicant receives an affirmative answer to the separate question shall be subject to further consideration at a directions hearing on 9 November 2015’.
Procedural background
[11] Of critical importance to the assertion of the lack of natural justice, are the steps taken prior to the hearing of the separate question as set out in some detail by the primary Judge who determined the process. In November 2015 Barker J made orders as to the hearing of the separate question broadly as follows:
In July 2016 The Court would hear opening submissions and the evidence of witnesses on country: then the anthropologists retained by Wunna Nyiyaparli and the Nyiyaparli would confer in a conference with the Registrar towards the preparation of a joint statement; and further that the anthropologists would then provide concurrent evidence with the parties make their final submissions in late August 2016.
Conduct of the separate question hearing
[12] Three members of the Wunna Nyiyaparli attended the hearing of the separate question on 11 July 2016 as they did before McKerracher J on this application. They were Ms Roy, Ms Drage and Mr Coffin who were not legally represented. They did not provide notice to the Nyiyaparli applicants that they were intending to appear and there was some confusion as to their intentions. The Nyiyaparli applicant objected to the Wunna Nyiyaparli being permitted to lead evidence given that they had proceeded on the basis that written affidavits were required and not the attendance of their witnesses at the hearing. Counsel for the Nyiyaparli applicants also indicated that he had not prepared to cross examine the Wunna Nyiyaparli witnesses. Finally counsel said that YMAC had not taken instructions in response to the foreshadowed evidence of the Wunna Nyiyaparli and would need the opportunity to do so. The Court determined that the Nyiyaparli applicants’ submissions were sound and that it would occasion the vacating of the 11 July 2016 hearing which was determined to be inappropriate and the Court ruled that the Wunna Nyiyaparli applicant should not be permitted to lead evidence at the hearing. This meant that the trial proceeded without the Wunna Nyiyaparli adducing evidence although they were permitted to make submissions on the evidence presented by the Nyiyaparli.
The Nyiyaparli applicant was the only party to tender a number of affidavits as evidence. No witnesses were required for the purposes of cross examination. The Nyiyaparli applicant and the State of Western Australia also submitted that particular regard should be given to the preservation of evidence hearing conducted on 11-13 June 2014. The Nyiyaparli applicant also relied on the evidence of two anthropologists: Kirsty Wissing and Kim McCaul.
Reasoning of the primary Judge
[13] His Honour paid particular regard to the evidence of anthropologist Mr McCaul.
[14] His Honour then considered the separate question identified two alternative means by which Maggie could be held to be a Nyiyaparli person either (a) by descent or (b) as a person possessing rights or interests in the land and waters observed by the Nyiyaparli. [15] His Honour approached the question on the balance of probabilities and addressed the laws and customs of the Western Desert people and Society [15] – [16]. [17] Importantly his Honour accepted all of the evidence and noted that there had been ‘some intermingling of Western desert people with Nyiyiparli as the Western Desert people came out of the desert and on to Nyiyaparli land.
[19] ‘The primary judge concluded that the Wunna Nyiyaparli had not established on the balance of probabilities that Maggie was a Nyiyaparli person by descent. [20] His Honour then considered the separate limb of the separate question namely that of obtaining rights and interests in land through pathways other than descent and turned to the evidence of Mr McCaul. [21] His Honour concluded that none of the evidence supported a conclusion that Maggie was a Nyiyaparli person whether by descent or otherwise and answered the separate question in the negative.
Objections as to the competency of the appeal
[26] The fourteen Respondents (Nyiyaparli) objected to the competency of the appeal. Their five grounds forming the notice of objection to competency are set out in this paragraph. The Respondents asked for the question of competency to be heard and determined before the hearing of any appeal.
Authorisation of the notice of appeal dated 30 January 2017
[27] McKerracher J agreed to hear the competency issue before the appeal.
[29] The question of authorisation relied in part between communications between members of the Wunna Nyiyaparli and their solicitors which ordinarily would have attracted legal professional privilege but they were voluntarily sent to the Court and others with a view to responding to the argument as to the lack of authorisation. Any privilege in those communications was therefore waived.
[31] The issue in relation to authorisation arises because on the footer of the first page and at the bottom of the second page it says that the document was prepared and signed by Ernest William Coffin as the appellant-however the signature actually appears to read HopgoodGanim Lawyers, who indicated that they had signed the notice of appeal on behalf of Wunna Nyiyaparli given they were not able to obtain Mr Coffin’s signature in time. [33] The respondents rely on provisions within the Court’s rules that provide that a person must not be named as an appellant without their consent and they also queried if all of the persons who make up the applicant have consented to the filing of the notice of appeal. The respondents rely on the reasoning in McGlade v Native Title Registrar (2017) 340 ALR 419 (at [234]-[238]) per North and Barker JJ and (at [379], [438]-[439]) per Mortimer J.
[34] By the time of the application before McKerracher J there was no indication that all of the applicants/appellants had authorised the filing of the notice of appeal dated 30 January 2017. [43] The notice of appeal was not served on the respondents and the supplementary notice of appeal was accepted for filing in Court on 4 May 2017. [44] McKerracher J determined that the notice of appeal dated 30 January 2017 was not authorised and the Wunna Nyiyaparli would require leave in order to file the document.
Whether leave to appeal is required
[46] McKerracher J decided that leave to appeal would be required but had not been sought. [47] His Honour reasoned that if for argument’s sake there was appropriate authorisation for appeal or the application for leave to appeal the separate question was answered in three native title claim proceedings as the same issue arose in all three claims. Two of those claims the Wunna Nyiyaparli claim and the 1998 claim wholly overlapped and it was necessary that they be dealt with in the same proceeding. The Wunna Nyiyaparli was designated as the ‘lead proceeding’ and all orders made and documents filed and all evidence received in the lead proceeding were taken to also be orders made, documents filed and evidence received in the Nyiyaparli claims. Therefore any appeal in relation to the answer to the separate question must be an appeal in relation to all three of the native title claim proceedings.
[48] That is consistent with the fact that the notice of appeal (the first and supplementary versions) indicates that the Wunna Nyiyaparli appeal from the whole of the judgment and all of the orders of the Court made on 16 December 2016. ‘Assuming that this is so, the proper characterisation of the orders seems to be that they were interlocutory in nature and as such leave to appeal is required pursuant to s 24(1A) of the Federal Court Act.
[51] McKerracher J observed that the orders made in the Nyiyaparli claims answering the separate question in the negative are not ‘final’ because those proceeding are continuing and the separate question has resolved only one of a number of issues. That is by definition an interlocutory determination.
[52] The other complication for the Wunna Nyiyaparli is that the only other order made in those proceedings, apart from answering the separate question adversely to the Wunna Nyiyaparli, was the removal of certain persons, namely the members of the Wunna Nyiyaparli applicant as respondents and there is no appeal from such an order by virtue of the provisions in s 24(1AA)(B)(i) of the Federal Court Act. Finally McKerracher J determined that as a result of the decision in Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 that in circumstances where an appeal is brought against a number of orders some of which are final and some of which are interlocutory, leave is required.
Should leave to appeal be granted if it were to be sought?
[54] Whilst there was not yet any application for either an extension of time to appeal or for leave to appeal McKerracher J set out the relevant criteria for leave to appeal:
the primary decision was attended with sufficient doubt to warrant it being reconsidered on appeal; and
if leave was refused substantial injustice would occur, assuming the original decision to have been wrong.
McKerracher J stated that [55] it is clear that the Wunna Nyiyaparli notice of appeal addresses the natural justice complaint however His Honour observes at [56] that the further materials filed by the Wunna Nyiyaparli were not in any way relevant to the notice and His Honour accepted the submissions of the Nyiyaparli and the State that no weight can be given to those materials in the present application.
[57] As to the substantive question of a lack of natural justice or procedural fairness in refusing to allow the Wunna Nyiyaparli to adduce any evidence at the hearing of the separate question on 11 July 2016, McKerracher J determines that the Wunna Nyiyaparli were given ample opportunity to participate at the hearing of the separate question.
McKerracher J:
[58] ‘in the context of contested proceeding initiated by a litigant in person, while a reasonable opportunity to assist a litigant in person is usually necessary, this does not extend to disadvantaging a represented litigant to its prejudice. Moreover, to guarantee procedural fairness is not open ended. The requirement for procedural fairness is a requirement that a party may be given reasonable opportunity to present its case, not every opportunity.’
[59] The question of whether or not further opportunity to adduce evidence should be given is a discretionary judgment and an appeal in respect of the exercise of discretion requires compliance with the principles set out in House v The King (1936) 55 CLR 499 (at 504-505).
McKerracher J concluded that:
[60] ‘the primary judge’s reasons for exercising discretion were set out with clarity and detail and were plainly correct. It is quite clear that there is not sufficient doubt about the correctness of the judgment under appeal to warrant consideration by the Full Court. Further His Honour stated that ‘there is real doubt as to whether substantial injustice would occur, assuming the original decision not to allow further evidence had been wrong.’[61]
McKerracher J concludes at [64] that the appeal is unauthorised and, in any event, incompetent and the objection to competency was upheld.