FEDERAL COURT OF AUSTRALIA NATIVE TITLE – "native title consultant" asserting prospect of work for himself not a person whose "interests are affected" within s 84(2) of Native Title Act 1993 APPEAL – denial of procedural fairness by trial judge asserted in application for leave to appeal – no sensible submission in support thereof presented – Court examines matter for itself COSTS – applicant treats opponent and Court with contempt – indemnity costs ordered dominicWYkanak v METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL & ORS NG 6001 of 1998 LEE, SUNDBERG AND MADGWICK JJ SYDNEY 21 AUGUST 1998 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6001 of 1998 APPLICATION FOR LEAVE TO APPEAL BETWEEN: dominicWYkanak APPLICANT AND: METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL First Respondent NEW SOUTH WALES ABORIGINAL LAND COUNCIL Second Respondent JUDGES: LEE, SUNDBERG AND MADGWICK JJ DATE OF ORDER: 21 AUGUST 1998 WHERE MADE: SYDNEY SHORT MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. 2. The costs of the second respondent be taxed on an indemnity basis. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6001 of 1998 APPLICATION FOR LEAVE TO APPEAL BETWEEN: dominicWYkanak AppLICant AND: METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL First Respondent NEW SOUTH WALES ABORIGINAL LAND COUNCIL Second Respondent JUDGES: LEE, SUNDBERG AND MADGWICK JJ DATE: 21 AUGUST 1998 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: This is an application for leave to appeal against a decision by a judge not to join the applicant ("Mr Kanak") as a party to proceedings for a determination that native title rights and interests did not exist in relation to land at Duffy's Forest, near Sydney. The proceedings had been instituted by the first respondent ("MLALC"). It is a body created under Part 2 of the New South Wales Aboriginal Land Rights Act 1983 (the "NSW Act"). It proposed to dispose of the land by way of a private sale, and needed the determination to enable completion of the sale: see ss 40 and 40AA of that Act. The President of the National Native Title Tribunal ("the Tribunal") had referred the application by MLALC to the Court pursuant to s 74 of the Native Title Act 1993 (Cth) (the "NT Act"). The second respondent ("NSWALC"), the body created by Part 4 of the NSW Act, was a party to MLALC's application to the Tribunal: see ss 68(2) and 66(2)(a)(vi) of the NT Act. NSWALC automatically became a party to the proceedings in the Court when the application was referred here by the President of the Tribunal: s 84(1) NT Act. Mr Kanak advanced two reasons why he should be joined. First, he said that his interests were affected because his occupation was that of a native title consultant and he would be affected by a determination that native title rights did not exist in the land: "if the rights do not exist, I do not have a job". Secondly, he wished to be joined so that he could represent a Mr Seiver, said to be a person who had native title rights and interests as a "Kuringai speaking person" who had an association with the land. The judge at first instance held that Mr Kanak's occupation did not mean that his "interests [were] affected by the matter" within the meaning of s 84(2) of the NT Act. As to the claimed interests of Mr Seiver, the learned judge held that Mr Kanak's desire to represent these interests would not justify Mr Kanak, as distinct from Mr Seiver, seeking to be joined, and there was no application for Mr Seiver to be joined. Further, there was no evidence to support the disputed claim that Mr Kanakwas a "representative" of any persons claiming to be traditional owners of the land. The judge then went on to determine that no native title rights or interests existed in the land. On the same day, 31 March 1998, Mr Kanaksought leave to appeal. Mr Kanakclaimed, among other things, to have attempted to hand up "evidence of my capacity to speak as a representative native title applicant", and "evidence [from] Mr Seiver that showed my capacity to produce his evidence … to the Court, and also showed his connexion to the country containing [the subject land]". In circumstances detailed below, no sensible submission in support of the application for leave was ever presented by Mr Kanak. Nevertheless, the assertions just referred to are capable of being read as suggesting that the trial judge did not accord Mr Kanak procedural fairness. We have accordingly examined the matter for ourselves. The fact is that Mr Kanakhad no admissible evidence to tender. He said he had no affidavit from Mr Seiver. Nothing was shown as to why the Court ought to overlook this. In any case, it is apparent that Mr Kanakmisconceived the notion of a party proceeding in a "representative" capacity, role or function. The learned trial judge attempted to explain this to Mr Kanak. His Honour enquired as to the nature of the supposed case Mr Kanakwished to present. If anything, his Honour exceeded the requirements of procedural fairness. The application for leave to appeal ought be dismissed. If the present proceeding could be regarded as an imperfectly constituted appeal as of right (which we need not determine), we would forgive its imperfection and dismiss the appeal. Costs NSWALC seeks an augmented costs order against Mr Kanak. As we have said, Mr Kanak lodged his process initiating the present application on the same day the trial judge found against him, 31 March 1998. On 8 May the matter was listed for case management directions before another judge. Directions given included that Mr Kanak file and serve any evidence upon which he would seek to rely by 12 June and that, within 7 days of 8 May, the parties approach the Registry for a date to settle the index of the papers for the Full Court. These matters were brought to Mr Kanak's attention before 14 May. On 14 May Mr Kanak and the other parties' solicitors were present at Court in relation to other proceedings. Mr Kanak was reminded of the obligation to approach the Registry by the next day. He replied "I've already told them that I'm not available until June" and declined there and then to proceed to the Registry, alleging other urgent business. The Registry was not approached on either 14 or 15 May. On 18 May Mr Kanak communicated by fax with the Registrar in the following terms: "Urgent Attention: Registrar Federal Court:Fx:9230 8535 – 5pp Re: Matters NG6001 & 3 of 1998 Native Title Matters Dear Registrar of the Federal Court of Australia – Please find attached notices of motion which the applicant seeks leave to have lodged/filed by fax (until such time as the applicant can come into court if possible). The applicant has asked for legal assistance/legal aid and asks that the applicant effectively be granted an extension of time to approach the registry for a date for settling the index and other orders in NG6001/98 and NG6003/98. The applicant as a representative applicant needs more time in which to talk to the traditional owners claiming native title on and around Lot 375 DP752017 about any statements they wish to make about cultural concerns and so effectively seeks an extension of time. The applicant/appellant is also asking the court for legal assistance under order 78. Please contact me about this notice of motion and these extensions of time." On 19 May the Registry advised Mr Kanak that the application would be heard on 3 July. On 2 June the solicitor for MLALC complained to Mr Kanak that Mr Kanak had obtained unilaterally an appointment for 17 June to settle the index and foreshadowed objection to any application to adjourn the hearing from 3 July. On 17 June the index was settled and Mr Kanak ordered to file the papers for the Court by 24 June. On 18 June 1998 Mr Kanak filed and served a Notice of Motion seeking an order directing the Registrar to provide reasonable assistance to him as "an unrepresented party" (see O 78 R 6). He also sought an extension of time "to comply with orders/directions of the Court ... until the applicant [or "the native title claimants" should have] legal assistance". On 22 June NSWALC's solicitor indicated that he would consent to Mr Kanak having O 78 R 6 assistance but only on the basis that this would not be "used as a ground for an adjournment". Evidently on the understanding that that condition was acceptable, the solicitor was thereupon helpful to Mr Kanak. We assume that there was some misunderstanding. On 25 June Mr Kanak lodged a Notice of Motion, returnable on the date fixed for the hearing of this application, 3 July, seeking an order directing the Registrar to provide him with assistance, asking for an extension of time to comply with the Court's directions and seeking leave to file a supplementary "Notice of Appeal" after obtaining legal assistance. By 30 June Mr Kanak had not applied to obtain the transcript of the hearing before the trial judge. Concerned as to what might occur on 3 July, Madgwick J listed these proceedings for directions on 1 July. Mr Kanak that day notified the Court and the respondents that "due to illness I am unable to attend court this morning" and that he sought an adjournment of his matters until he was "well or have a next friend to appear for me". On 2 July NSWALC put on an affidavit exhibiting the necessary papers for the Court so that, on 3 July, the Court could understand what the case was about. On 3 July, when the case cameon for hearing, there arrived at the Court a letter from Mr Kanak, transmitted by facsimile, seeking the opportunity "to file written submissions next week" and explaining that he was ill. An attached medical certificate indicated that a doctor had seen the appellant on 2 July, that he was suffering from "flu" and that he would be "unfit for work" from 2 to 3 July. When the matter was called on, there was no appearance for Mr Kanak. The Court ordered that, firstly, any written submissions on behalf of the respondents on the question of costs be filed and served by 5pm on 6 July; secondly, that Mr Kanak file and serve any submissions and any submissions in reply to the respondents' submissions on costs by 5pm on 13 July 1998; thirdly, that the respondents file and serve any submissions in reply by 15 July 1998; and fourthly, that costs of the hearing be reserved. On 9 July Mr Kanak notified the Court by facsimile as follows: "Due to extended illness (attached certificate) dominicWYkanak has been unable to attend to Court business. Please fax me any Court business/directions/orders that require my attention. I will attend to the Court business when I am well otherwize [sic] I seek an extension of time, to meet the Court's requirements". The attached medical certificate indicated that Mr Kanak had been seen on 9 July, found to be suffering from "URTI" and was "unfit for work" from 8 July to 11 July inclusive. Mr Kanak, despite objection by NSWALC, sought extension of time to file submissions. What appeared to be a further medical certificate was transmitted by facsimile stating that on 13 July the appellant was suffering from "sinuntis" [sic] and was "unfit for work" from 13 July to 14 July. Another facsimile medical certificate forwarded to the Court stated that on 16 July Mr Kanak was suffering from "illness" and "will be unfit for work … from 15.7.98 to 16.7.98 (inclusive)". On 16 July Lee and Sundberg JJ (in the absence of Madgwick J on leave) directed: "The time for the applicant to file written submissions is to be extended to 24 July 1998. No further extension will be granted if sought." On 24 July the Court received what appeared to be the first page of a multi-page facsimile transmission of "written submissions". An officer of the Court advised Mr Kanak on 27 July, by facsimile, of the unsuccessful transmission of his fax, and also left a message to that effect on Mr Kanak's telephone answering machine. There has been no response from Mr Kanak. Conclusions As we have set out above, the application for leave was hopeless. Mr Kanak had a duty to abide directions of the Court and to deal fairly and properly with opponents. In the present matter Mr Kanak has done neither of these things. Despite requests for indulgence being couched with apologies he has, in effect, treated the Court and the respondents with contempt. Mr Kanak is an experienced litigant. On a previous occasion he has been given a specific warning by the Court about the risk of costs being awarded against him on an indemnity basis, albeit in a different context. On 31 July last year, Burchett J said: "… he ought clearly to understand that, if there are repeated, completely groundless applications which in truth can be regarded as attempts collaterally to attack decisions that have already been held to be good, he will inevitably incur orders for costs on an indemnity basis in the future." The circumstances of this proceeding are of the type alluded to by Burchett J and out of the ordinary. Mr Kanak should pay the costs of NSWALC on an indemnity basis and those of MLALC on a party-party basis. After the preparation of the foregoing reasons and notification to the parties that the matter would be listed for judgment today, a further facsimile communication was received by the Court from the applicant. It sought, in similar vein to other communications from him, more time to put in submissions and other indulgences, none of which the Court was prepared to grant. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Court Associate: Dated: 21 August 1998 No appearance by the Applicant Counsel for the First Respondent: T Robertson Solicitor for the First Respondent: Andrew Chalk & Associates Counsel for the Second Respondent: R Beech-Jones Date of Hearing: 3 July 1998 Date of Judgment: 21 August 1998