Allsop CJ, Marshall J and Mansfield J
In this matter, the State of Western Australia (the State) sought leave to appeal the primary judge’s decision to reject the State’s application for the dismissal of the native title party’s (the respondents) application on the basis that it was an abuse of process. Ultimately, the Appellant Court made an order dismissing the State’s application for leave to appeal.
Proceedings before the primary judge
The matter before the primary judge concerned a second application for a determination of native title on behalf of the respondents, the Thalanyji People. The respondent’s made two applications for native title determinations: the first (Thalanyji No 1) was lodged with the National Native Title Tribunal in 1996, and the second (Thalanyji No 2) was lodged with the Federal Court on 6 May 2010.
Thalanyji No 1 was determined by consent before Justice North on 18 September 2008 (see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487). The parties’ consent resulted in Justice North ordering that native title exists in relation to some of the area covered by Thalanyji No 1, and dismissing the balance of the application covering the remaining areas.
Thalanyji No 2 sought a native title determination covering the land over which Justice North dismissed as the balance of the Thalanyji No 1. Accordingly, the State sought an order that the primary judge dismiss Thalanyji No 2 on the basis that it was an abuse of process, because the land covered in Thalanyji No 2 was finally dealt with in Thalanyji No 1.
The primary judge rejected the State’s application because his Honour could not form the view that Justice North in Thalanyji No 1 made the consent determination on the basis that the claimant group had abandoned its claim to the relevant area. The primary judge noted that the position he had arrived at involved ‘a difficult judgment call’. Critically, his Honour said:
..if the parties had come to a clear agreement that the terms of the consent determination, including the dismissal of the balance of the Thalanyji (No 1) claim, was intended to completely shut out the same claim group from ever proceeding with a subsequent claim in respect of the area excluded from the consent determination, then it should have been clearly spelled out. In my view, it was not.
Accordingly, the primary judge concluded that he did not consider that Thalanyji No 2 should be dismissed for abuse of process.
The appeal
The State submitted that the primary judge had mistaken the proper test in concluding that it could not be shown that the parties intended to abandon the claim over the land in question. The State argued that Justice North’s order in Thalanyji No 1 provided for the final dismissal of the respondent’s claim to native title over the balance of the land. In support of this position, the State noted that no reservation was made under the Federal Court Rules 1979 (Cth) regarding the right of respondents to bring another claim. Accordingly, the State argued that Justice North’s order put an end to the entitlement of the respondent to claim rights under the Native Title Act 1993 (Cth) (NTA). Further, the respondent submitted that orders and rules should not be employed to create injustice.
The Appeal Court considered the authorities regarding the principle of res judicata (a legal doctrine that bars parties in a lawsuit from raising the same issues again once those issues are finally determined). For example, the Court noted that in Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508, Deane J, Toohey J and Gaudron J said:
The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date…But the principle of res judicata holds good in such a case.
The Appeal Court noted that if a party asserts that the other is precluded from asserting a claim by reason of the principle in res judicata, that party can opt to seek:
To have the proceedings dismissed as an abuse of process
An order for summary dismissal or
Plead the matter as a defence and have the issue disposed of finally, either as a separate question or after a full trial.
The first two procedural mechanisms are summary in character, preventing any hearing on the merits.
The Appeal Court found that in this matter there were a number of considerations that make it inappropriate to dismiss the proceedings in a summary fashion. Including, among other things:
That litigation under the NTA is not ordinarily private litigation. The Court noted that in native title litigation, the rights are of a communal nature based on the occupation and a physical and spiritual connection between the land and people. How that context affects the operation of principles such as res judicata in the context of the NTA is a large question, and is one of great importance and
The possible relationship between the strength of the evidence of the respondent’s connection with the land and the position of the State in the litigation. The State is the polity whose residents make the claim of historical connection with land. If that connection evidence were strong, an issue might arise as to the content of the legal obligation of the State in how it approached a claim for res judicata, based on a procedural step that may have been a product of mistake or ignorance. The Court noted that the answer to this question might fashion the development of a rule of law qualifying the principle of res judicata in the context of this type of claim under the NTA.
The Appeal Court noted that it may be that, in the light of the submissions to Justice North in Thalanyji (No 1), that the proper construction of the order was such as to contemplate a reservation of finality of the matter. However, the Appeal Court found that if this is not the case, the deeper question of the kind mentioned in points 1 and 2 above may be further considered. Therefore, the Appeal Court held that these questions require the care of final, not summary, consideration and dismissed the States application for leave to appeal.