Mansfield, Dowsett and Jagot J
In this matter, the Full Federal Court considered an appeal against Justice Collier’s decision in Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314, to dismiss a native title application.
The appeal was sought on the basis that Justice Collier failed to consider relevant matters when she dismissed the application on the grounds that:
the application lacked reasonable prospects of success; and
the maintenance of the application constituted an abuse of process.
In their joint judgment, Mansfield and Jagot J allowed the appeal and set aside the primary judge’s orders.
With respect to the first ground, their Honours acknowledged the appellant’s dilatory approach and lack of real progress but stated that a request to seek additional anthropological material is not a proper basis for the summary dismissal on the ground of lack of reasonable prospect of success.
Their Honours found that the primary judge did not adequately distinguish between the “sufficiency of material necessary for a party to succeed at trial (on the one hand) and to show the existence of a real or genuine case (on the other hand).” [at 10]
Mansfield and Jagot J said that determining the second ground involved more finely balanced considerations. Their Honours considered that “the primary judge’s conclusion of abuse of process was partly based on the erroneous conclusion of the lack of reasonable prospects of success.”
Their Honours explored the factors contributing to the primary judge’s dismissal and found that, throughout the history of this matter, the appellants had evidenced the intention to proceed with the claim and had complied with Court directions in a timely manner.
In his separate judgment, Dowsett J also ruled to allow the appeal and set aside the primary judge’s orders.
With respect to the first ground, his Honour set out [at 62] that the primary judge had not examined the available evidence such as to support the dismissal of the application for want of reasonable prospects of success. In Dowsett J’s consideration, it was not clear that the appellant would have been unable to support its case on the available evidence.
With respect to the second ground, Dowsett J considered that the primary judge had found an abuse of process on the basis that the appellant’s evidence did not support the existing application, stating [at 64] such a view could only be justified by reference to the evidence, a step which her Honour did not take. Thus I conclude that her Honour’s exercise of the discretion miscarried in that she chose to rely on an inference which she considered was available from the appellant’s conduct in seeking further evidence, and without regard to evidence which seems to have offered at least some support for its case.
Of note, Dowsett J observed a distinction between case management generally and case management of Native Title matters, stating [at 56] that:
The statutory form of application is generally an unsatisfactory combination of application and statement of claim, frequently involving the indiscriminate use of language borrowed from the Native Title Act 1993 (Cth) and/or the cases. It frequently reflects inadequate research and undue haste, often brought about by awareness of a proposed development about which the claim group wishes to negotiate. There is virtually never a defence. The common expectation is that, over time, negotiations will lead to agreement.
His Honour also discussed the point at which trial becomes the dominant aim of case management, stating [at 57] that:
In some cases, that point may be reached because the parties have simply been unable to agree. In others it may be that the parties have not really tried. In either case the Court will generally adopt a more prescriptive approach to case management, perhaps by fixing a timetable designed to bring the matter to trial, or by fixing time limits within which particular steps are to be taken. In some cases, the parties may find it difficult to respond to a sudden change in the case management goals. To some extent, the Court will have to accommodate that difficulty. After all, it will, in part be the product of the way in which the Court has previously managed the case. In some cases, it may be necessary to allow the parties a significant period of time in which to adapt to the new case management regime. The prior history of the matter will generally be relevant to the length of time which the Court allows for that purpose.