O'Bryan J
Background
On 19 August 2020 the native title applicant filed an interlocutory application seeking an order that the response filed by the first respondent (State of Queensland) be struck out. Expert anthropologists retained by both parties had agreed that the applicant holds native title in the claim area. However, this was not accepted by the State which remained unwilling to negotiate a consent determination under s 87 of the Native Title Act 1993 (Cth) (NTA).
Although His Honour dismissed the interlocutory application, he noted that the State could and should do more to elucidate its concerns in relation to the applicant’s native title claim in accordance with its obligations under the NTA and the Federal Court of Australia Act 1976 (Cth) (FCA Act). His Honour ordered the parties to confer about further steps to be taken in the proceeding to facilitate conciliation of the claim and, within 28 days, file agreed orders or, if agreement could not be reached, competing orders together with submissions. The parties were unable to agree. There were four primary areas of disagreement, which made up the bulk of this judgment.
1. Application for leave to appeal orders made on 19 August 2020
The applicant advised that while it wished to maintain the opportunity to seek leave to appeal the orders of 19 August 2020, it also wished to progress conciliation in accordance with the order. The applicant asked for the State’s consent to an extension of time to file for leave, which was declined. The State contended that further conciliation should not commence until the application for leave to appeal was determined in order to minimise costs and time wastage.
His Honour concluded that it was an exercise in speculation as to whether costs would be wasted. If the conciliation steps resulted in an agreement between the parties, costs associated with the appeal would be avoided. Even if agreement did not occur the conciliation process would assist the parties and the Court in clarifying points of opposition to the applicant’s claim. Additionally, the further conciliation steps would not involve costs for the Court and the applicant had expressed their desire to pursue that pathway. Finally, costs to the State held little weight given the State’s role in the proceeding and the resources available to them. For these reasons, the Court rejected the State’s contentions on the grounds that they were unreasonable and contrary to the overarching purpose stated in s 37M of the FCA Act.
2. Steps to be taken by the parties
Both parties proposed that the first step be for the State to write to the applicant with a list of questions based on the expert evidence filed by the applicant. The applicant then proposed that they provide a written response, to which the State replies, followed by a mediation before a Registrar of the Court. The State proposed that the applicant should respond to the State’s questions and, at the same time, indicate whether it intends to file further evidence to which the State would then respond. The Court decided that the steps proposed by the State were preferred as they would ensure the State considered the actual evidence sought to be relied upon by the applicant when determining whether it is satisfied that there is a credible basis for a consent determination.
3. Benefits of mediation between parties
The applicant proposed a mediation before a Registrar of the Court before the matter returned for further case management. The State’s orders did not provide for mediation. His Honour considered mediation to be desirable at the end of the conciliation process if either party sought it. And if the conciliation and mediation process failed to achieve an agreement, a trial date would be set for hearing separate questions.
4. Questions and answers to be exchanged on a ‘without prejudice’ basis
The State proposed that materials be exchanged without prejudice, while the applicant proposed they should be open. The Court found that the materials should be exchanged on an open basis, as the orders His Honour made were case management orders designed to clarify the position of each party in the proceeding.