This matter concerned an application, brought on behalf of the Western Kangoulu People, to strike out the defence filed by the State of Queensland, in response to the applicant’s statement of claim. O’Bryan J dismissed the application, and ordered further steps for party conciliation.
Background
The ongoing native title claim was originally filed in May 2013. It previously overlapped other native title claims, collectively known as the 'Ganggalu Cluster'. In 2017, a conference of expert anthropologists was ordered to provide opinions about the native title issues, and whether opinions agreed or differed. They were not required to provide reasons for their opinions. Anthropologists representing each party attended two conferences in February 2019, resulting in two expert reports. The experts retained by the State and applicant agreed that the applicants hold native title in the claim area.
Subsequently, the applicants sought a consent determination. The State responded in May 2019, stating that the Western Kangoulu claim lacked a credible basis and refusing to enter into negotiations. It alleged the claim group composition was unsettled and there was insufficient evidence to prove continuing traditional connection to the area. The State acknowledged the experts' agreement, but expressed concern that the basis for the opinion was unarticulated.
In December 2019, the applicants filed an amended statement of claim, but the State requested further amendments. The State then opposed the applicant's proposed amendment and in May 2020 the State notified its intention to go to trial. The applicants subsequently filed an application to strike out the State’s defence to the statement of claim.
Submissions
Applicant
The strike out application was based on the contention that State breached:
The obligation to negotiate in good faith under the Native Title Act 1993 (Cth))
The litigation principle that disputes are to be resolved as quickly, inexpensively and efficiently as possible (prescribed by Part VB of the Federal Court Act 1976 (Cth)) (FCA))
The prohibition against abuse of process
The Model Litigant Principles issued by the Queensland Government, which require the State to reduce litigation, avoid undue delay and prefer alternative dispute resolution processes.
The applicants sought to strike out the response and remove the State as an active party in the native title determination. The basis for their submissions was that the expert reports effectively resolved the central issues in the proceeding and established the claim’s credibility. The applicants highlighted that the State-appointed anthropologist upheld the existence of native title and that the State did not dispute the expert conferral process prior to it producing an undesired outcome. The significant costs and time incurred were also raised.
Queensland
The State rebutted the alleged breaches and rejected the implication that the parties are bound by the conclusion reached by the experts. It again raised issues of deficiencies relating to the claim group description, society and laws and customs, which have not been cured.
Decision
O’Bryan J dismissed the application, although stating the position the State adopted was unusual. The State was not found to have acted in bad faith, nor breached the just, quick and fair principle as it had consistently maintained (since May 2019) that the claim lacked a credible basis and identified how. Further, as the Model Litigant Principles are solely directions for State parties in litigation, and do not create litigant rights, they cannot be relied on. Despite the ‘regrettable’ nature of the State raising concerns to the expert process after participating, this did not render their actions to be an abuse of process.
Consideration was given to the fact that the State was not seeking to file further evidence and the hearing date had not been set. Hence, it was held that the State was not causing undue delay nor materially changing its admissions last minute. O’Bryan J still barred the State from submitting further anthropological evidence.
Identifying that the application rested on State refusal to accept the expert reports, his Honour held the expert is only a potential witness, and therefore the report is non-binding. Additionally, the reports were not conclusive of issues, nor specific to the present proceeding.
Given the evident disparity of resources between the applicant and the respondent, it was held the State ‘can and should’ do more to aid the applicant to resolve their claim. Under 37P of the FCA, his Honour directed the State to articulate a ‘series of detailed questions to the applicant’ based on the evidence filed. This was deemed to provide the applicant an opportunity to prove a claim basis to the State's satisfaction [87]. If an agreement could not be reached, O'Bryan J noted any unreasonable State opinion at trial would result in an appropriate order for costs [88].