Branfield v Wharton [2004] FCAFC 138

THE COURT: 1 Before the Court is a motion filed by Una Branfield, Bill Chapman, Clarence Colliss, Angus Mitchell, Ross Mitchell, Aileen Orcher, Micky Speedy and Grace Wetherall ('the Branfield applicants') on 9 January 2004 seeking leave to appeal, and an extension of time for seeking such leave, against an order made by Emmett J on 10 December 2003. His Honour dismissed an application made under s 84C of the Native Title Act 1993 (Cth) by the Branfield applicants to strike out an application for the determination of native title. The application for a determination of native title was lodged by Wayne Wharton, the first respondent, on 4 June 1996 on behalf of the Kooma people ('the Wharton application'). 2 Section 84C(1) of the Native Title Act 1993 provides: 'If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.' 3 Section 84C was introduced for the first time by the Native Title Amendment Act 1998 (Cth) ('the Amending Act'). The Act in force immediately before the commencement of the Amending Act on 30 September 1998 will be referred to as 'the old Act', and the Act in force immediately after will be referred as 'the new Act'. 4 Both the old and the new Acts specified who was entitled to bring an application for a determination of native title. The issue which must be determined in these applications arises because the old s 61 which made such provision was changed in the new Act. The old s 61(1) relevantly included, as persons who could make an application for a determination of native title: 'A person or persons claiming to hold the native title either alone or with others' … and also provided that: (3) An application made by a person or persons claiming to hold native title, … with others must describe or otherwise identify those others. In doing so, it is not necessary to name them or to say how many there are.' Section 61(1) of the new Act relevantly included, as persons who could make an application: 'A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or …' and s 61(4) of the new Act provided: '(4) A native title determination application, … that persons in a native title claim group … authorise the applicant to make must: (a) name the persons; or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.' 5 The way in which s 84C was to operate in relation to the old and the new forms of s 61 was set out in cl 21 of Pt 5 of Sch 5 of the Amending Act, as follows: 'Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.' 6 The strike out application in the present case was originally argued on the basis that the new s 61 applied. No reference was made by the parties to cl 21. The issue, then, was whether Mr Wharton was authorised as required by s 251B of the new Act. The primary judge was not satisfied that Mr Wharton was so authorised, but his Honour withheld making orders to give the parties time to consider his conclusion. In the meantime, Mr Wharton filed a written submission raising, for the first time, the effect of cl 21. As a result, the primary judge convened a further hearing and heard argument from the parties. Following this hearing, his Honour determined, on 10 December 2003, to dismiss the strike out motion. 7 The primary judge gave two alternative reasons for his conclusion. First, he regarded the terms of cl 21 as unambiguous. If an application for a determination of native title was commenced before the Amending Act, the old s 61 had to be considered in an application under s 84C. If the application for a determination of native title was commenced after the Amending Act, the new s 61 had to be considered. The primary judge said at [27] that '[a]n amendment to the main application does not give rise to a new application'. Second, his Honour considered the argument raised by the Branfield applicants, in reliance on Quall v Risk [2001] FCA 378 ('Quall'), namely, that where an application for a determination of native title commenced before the Amending Act is amended by changing the composition of the claimants, the new s 61 applies to the consideration of a strike out application under s 84C. The primary judge found against the Branfield applicants on the facts. He found that, in this case, 'there has not been a change in substance in the group on whose behalf the Wharton application is brought'. The primary judge explained the reasons for this conclusion as follows: '30 … Following amendment filed on 2 October 1996, the Wharton Application was expressed to be made by Wayne Wharton "on behalf of the applicant … and all Kooma People". In response to the requirement of s 61(3) of the Old Act to describe or identify who were "the others" on whose behalf the application is made, the following appeared: "The application is made on behalf of the applicant Wayne Morris Wharton and others identified as Kooma [P]eople." Later, the application contained the following statement: "The applicant represents all of the members of the Kooma people for the purpose of this application." 31 In his amended application lodged on 28 May 1999, Wayne Wharton described the native title claim group in the following terms: "This native [title] claim is made on behalf of the following family groups and their descendants: · Lucy Sheridan … and her descendants; · Kitty of Bollon … and her descendants; · Coombra Jack and Fanny … and their descendants; · Peter of the Maranoa … and Angelina and their descendants; · Susan Mitchell … and her descendants; · Maggie of Bendee Downs … and her descendants; · Mary Button of Murra Murra … and her descendants". 32 No mention is made at that point to "the Kooma People". However, in Sch F of the amended application, which requires a general description of native title rights and interests claimed, there are many references to "the Kooma". Further references to "the Kooma" appear in Sch L, which deals with tenure and land use issues. Similarly, in Sch M, which deals with traditional physical connection, there are many references to "the Kooma". There can be no doubt that the amended application claims native title on behalf of the Kooma People, whoever they may be. 33 Thus, while the amended application filed on 28 May 1999 describes, with greater particularity, the native title claim group that had previously been described in general terms as "the Kooma People", it is clear that that is meant to describe the Kooma People in a way that was intended to comply with s 61(1) of the New Act. While the amended application identifies the Kooma people with considerably more certainty, it is clear that it was not, considered objectively, intended to change the persons or group on behalf of whom the application was brought.' 8 One of the important matters to be considered by the Court in deciding whether to grant leave to appeal to the applicants is their chance of success on the appeal: Decor Corporation Pty Ltd & Anor v Dart Industries Inc. (1991)104 ALR 621 at 622; 33 FCR 397 at 398. It is convenient to turn to that issue now. 9 On the appeal, the Branfield applicants wish to contend that the primary judge erred in applying the principle enunciated in Quall. In written submissions they contended that the description of the native title group changed from being "all Kooma People" otherwise undefined to being seven named "family groups and their descendants". In oral submissions, Mr Bain QC who appeared with Mr Katter for the Branfield applicants, supplemented this argument with a further argument based on the fact that, whilst the person to be registered as the native title claimant was entered on the original application as 'Wayne Morris Wharton on behalf of all Kooma people', the applicant was designated on the application as 'Kooma Aboriginal Corporation for land'. Again, the alteration from reference to the land corporation in the original application to the family groups and their descendants in the final amended application demonstrated, it was submitted, a change in the composition of the group. There was, the Branfield applicants argued, a change in the 'particularity of the claimants', within the language used in Quall. 10 In Quall, it was found that there had been a change in the composition of the claimants (at [63]). Later in the reasons for judgment (at [65]), the change was referred to as a change in 'the particularity of the claimants'. The reference to the change in the particularity of the claimants was used to mean a change in the composition of the claimants. As to that latter concept, the primary judge said at [29]: '29 O'Loughlin J in Quall referred (at [63]) to an amendment involving a change in "the composition of the claimants". It is not entirely clear what his Honour meant by the reference to an amendment made "by changing the composition of the claimants". It may be that his Honour intended to refer to a change in the membership of the claimant group, as distinct from further particularisation of the claimant group. There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act. If there were an amendment to that effect, the application as amended might fairly be characterised as a fresh application. It is not apparent to what extent Quall involved a change in substance as to the persons on whose behalf the claim was being made.' The Branfield applicants relied on several decisions which have followed Quall namely, Edward Landers v State of South Australia [2003] FCA 264 ('Landers'); Dieri People v State of South Australia [2003] FCA 187 ('Dieri') and Bodney v State of Western Australia [2003] FCA 890 ('Bodney'). Colbung v The State of Western Australia [2003] FCA 774 ('Colbung') approved Dieri on this aspect. 11 Both respondents would argue on the appeal that the primary judge was correct in his conclusion on the facts of this case that the amendments did not involve a change in the composition of the claimants. In the alternative, the first respondent would argue that the evidence before the primary judge was not sufficient to discharge the onus on the Branfield applicants to show that there was a change in the composition of the claimants. The State of Queensland, the second respondent, would also wish to argue that, in any event, Quall was wrongly decided. It would say that the clear meaning of cl 21 was that an application under s 84C in respect of an application for a determination of native title commenced before the Amending Act was to be considered under the old s 61, whether or not there were amendments made to the application for a determination of native title after the commencement of the Amending Act. There was no occasion to consider the nature or extent of any amendments – the only matter relevant to the application of the old s 61 was that the original application was commenced before the commencement of the Amending Act. In effect, this argument supported the first basis on which the primary judge dismissed the strike out application. 12 For the purposes of these applications for leave, we are prepared to assume, in favour of the Branfield applicants, the existence of the principle said to have been established in Quall. However, even if the principle is assumed, the Branfield applicants have not established any error made by the primary judge in the application of the principle. It was open to the primary judge to infer from the facts which he recorded that the amendments to the application did not involve a change to the composition of the claimants. Similarly, as was rightly conceded by Mr Bain in response to a question from the Court, there is nothing in the reference to the 'Kooma Aboriginal Corporation for land' in the original application which necessarily displaces that inference. Hence, on the basis assumed in their favour, the Branfield applicants are bound to fail on the appeal. It follows that there is no utility in granting leave to appeal. We will grant the extension of time sought by the applicant, but refuse leave to appeal. 13 In those circumstances, no occasion arises for consideration of the more radical argument foreshadowed by the State of Queensland. Consideration of that argument should await a case in which its determination is required by the facts of the case. 14 As already noted, we have assumed, for the purpose of considering leave to appeal, the correctness of the principle said to have been established in Quall. At the same time, we acknowledge that there is scope for questioning the correctness of that principle. Although it is not necessary to deal with the cases referred to by the Branfield applicants because of the approach we take, we observe in passing that in Landers, Dieri and Bodney there was no argument addressed to the Court on the effect of an amendment to the application for a determination of native title. In both Landers at [5] and [6] and Bodney at [9] the judgments record that the parties agreed that the approach in Quall should be taken. In Colbung, although Dieri was approved, the Quall reasoning was unnecessary for the determination of the application before the Court because the application for a determination of native title was found to comply with the new s 61 in any event. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.