FEDERAL COURT OF AUSTRALIA Walker v State of Queensland [2004] FCA 640 EILEEN WALKER AND ORS v STATE OF QUEENSLAND AND ORS QG 6008 of 1998 ALLSOP J 17 MAY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 6008 of 1998 BETWEEN: IN THE MATTER OF EILEEN WALKER, AGNES WALKER, JOHN WALKER JNR, HAZEL DOUGLAS AND PETER FISCHER ON THEIR OWN BEHALF AND ON BEHALF OF THE EASTERN KU – KU YALANJI PEOPLE APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT COOK SHIRE COUNCIL SECOND RESPONDENT DOUGLAS SHIRE COUNCIL THIRD RESPONDENT WUJAL WUJAL COMMUNITY FOURTH RESPONDENT ERGON ENERGY CORPORATION LIMITED FIFTH RESPONDENT TELSTRA CORPORATION LIMITED SIXTH RESPONDENT RUSSELL DAVID O'DOHERTY SEVENTH RESPONDENT ODETTE CATHERIN PHILLPOT EIGHTH RESPONDENT ARNFRIED BRENDECKE NINTH RESPONDENT VERNON JOHN GOODYEAR TENTH RESPONDENT TERRY ANN ROGERS ELEVENTH RESPONDENT KEVIN JOHN BRANDT TWELFTH RESPONDENT ROBERT ALFRED HARLOW THIRTEENTH RESPONDENT ANDREW ALAN MARSHALL FOURTEENTH RESPONDENT RODERICK WILLIAM MCLEAN FIFTEENTH RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 17 MAY 2004 WHERE MADE: CAIRNS THE COURT ORDERS THAT: (1) Leave be granted to the applicant to amend the Native Title Determination Application in the form exhibited to the affidavit of Marita Louise Stinton, sworn and filed 24 March 2004. (2) Leave be granted to the applicant to file a settled clear version of the Amended Application with the Federal Court Registry. (3) Such an amended application and such a clear version of the amended application not be filed before 1 June 2004. (4) The disposition of order 2 in the notice of motion filed on 24 March 2004 be stood over and order: (a) that Messrs Brandt, Harlow, Marshall and McLean file and serve within 28 days any further affidavits and submissions directed to the remaining parties and the interests they say support that position. (b) That within 14 days thereafter the applicant file and serve any affidavits and submissions on that issue; The Court notes the undertakings of the persons identified as the Applicant given through their counsel that should a future Native Title Determination Application be filed on behalf of the Yalanji people over the areas presently subject to the interests of Messrs Brandt, Marshall, McLean and Harlow, where any of those persons remain as holders of an interest in those areas, then the costs of the present proceedings incurred by any of Messrs Brandt, Marshall, McLean and Harlow who remain may be recoverable from the Native Title applicant; and (5) The question of costs be reserved; and (6) Liberty be granted to Messrs Brandt, Marshall, McLean and Harlow and the Commonwealth of Australia, through the Attorney-General or otherwise, to re-list this matter and argue that the costs of Messrs Brandt, Marshall, McLean and Harlow to date or some of them should be paid by the applicant or others should any further claim be made for Native Title over the leasehold areas held by Messrs Brandt, Marshall, McLean and Harlow. (7) The Burungu Aboriginal Corporation be joined as a party to the determination application. (8) Leave be granted to the Cook and Douglas Shire Councils to withdraw the notice of motion filed by them on 4 May 2004. (9) Save for those orders made, the notice of motion of the applicant dated and filed 24 March 2004 be dismissed. (10) The matter be stood over for directions by video-link to Friday, 9 July 2004 at 10.15am. (11) Liberty to apply on two days' notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY QG 6008 of 1998 BETWEEN: IN THE MATTER OF EILEEN WALKER, AGNES WALKER, JOHN WALKER JNR, HAZEL DOUGLAS AND PETER FISCHER ON THEIR OWN BEHALF AND ON BEHALF OF THE EASTERN KU – KU YALANJI PEOPLE APPLICANT AND: STATE OF QUEENSLAND FIRST RESPONDENT COOK SHIRE COUNCIL SECOND RESPONDENT DOUGLAS SHIRE COUNCIL THIRD RESPONDENT WUJAL WUJAL COMMUNITY FOURTH RESPONDENT ERGON ENERGY CORPORATION LIMITED FIFTH RESPONDENT TELSTRA CORPORATION LIMITED SIXTH RESPONDENT RUSSELL DAVID O'DOHERTY SEVENTH RESPONDENT ODETTE CATHERIN PHILLPOT EIGHTH RESPONDENT ARNFRIED BRENDECKE NINTH RESPONDENT VERNON JOHN GOODYEAR TENTH RESPONDENT TERRY ANN ROGERS ELEVENTH RESPONDENT KEVIN JOHN BRANDT TWELFTH RESPONDENT ROBERT ALFRED HARLOW THIRTEENTH RESPONDENT ANDREW ALAN MARSHALL FOURTEENTH RESPONDENT RODERICK WILLIAM MCLEAN FIFTEENTH RESPONDENT JUDGE: ALLSOP J DATE: 17 MAY 2004 PLACE: CAIRNS REASONS FOR JUDGMENT 1 I have before me a notice of motion filed by the applicant in these proceedings seeking orders that: first, pursuant to s 64 of the Native Title Act 1993, to which I will refer as "the Act", the Native Title determination Application made by the applicant on behalf of the members of the Eastern Ku-Ku Yalanji People be amended as shown on Amendment Application number 2, exhibited to the affidavit of Marita Louise Stinton dated 24 March 2004; secondly, pursuant to s 84 of the Act, that Kevin John Brandt, Robert Albert Harlow, Andrew Alan Marshall and Roderick William McLean be dismissed as parties to the proceedings; and thirdly, an order pursuant to and/or in accordance with s 85A of the Act that each party bear his or her own costs of and incidental to this application. 2 There were other notices of motion by the parties brought forward today, but they have been resolved. It is thus only necessary now to deal with the notice of motion brought by the applicant. The claim was initially made in 1994. Much energy has been directed to mediating the matter and, in particular, to obtaining, by agreement, an Indigenous Land Use Agreement. The matter was allocated to me in 2002. In 2003, I was confidently informed the proceedings would settle. Sadly, that has not happened. The particular difficulty now concerns, and the motion concerns, four pastoral leaseholders, Messrs Brandt, McLean, Marshall and Harlow. 3 Mr Harlow's lease may be in a special position. It is said, and there is evidence that, in fact, the claim as it is presently structured, does not directly impinge on Mr Harlow's lease and that the parties appear to have been under a common mistake about that affectation up to recently. However, it is common ground that the claim as currently framed covers the pastoral leases of Messrs McLean, Brandt and Marshall. 4 From what I have been told at directions hearings and from some of the evidence, there have been various attempts to reach agreement between the applicant and the four pastoral leaseholders. And I infer that at times the process of negotiation has been strained. The applicants have led evidence and submitted that they have funding constraints and that the time, effort and energy and funds being taken up in reaching agreement for a consent determination over the leasehold land with the pastoral leaseholders is putting such strain on their ability to deal with the claim as a whole, that they wish simply to withdraw their claim away from and back from the pastoral leaseholders' land. 5 This is opposed by the four pastoral leaseholders. First, evidence has been led and submissions put that some real progress has been made in respect of negotiation concerning at least two of the four leasehold areas. Secondly, it is put that having come to this litigation late - a matter to which I will return - but having expended real time and effort and money involved in the litigation, they should not simply be left out of the resolution of the matter in particular in circumstances where the applicant in this or later generations may renew the claim. I indicated a moment ago that the four pastoralists were lately joined. Three were joined in December 2002 and one in mid-2003. It is unnecessary to comment on this late joinder given when the claim began in 1994. It is sufficient to say that since being joined, they have apparently actively participated in the mediation process. 6 The applicant's view is that the costs of dealing with the four pastoralists are disproportionate to the benefit that they may end up gaining by a consent determination over that land. The applicant believes that they can reach a consent determination over the balance of the smaller claim area. And for that purpose, the applicant wants the four pastoralist parties removed as parties. A little further history of the claim is necessary to understand. 7 In about May 2003, I was told that the matter would probably settle. In September, some of the parties urged me to remove the matter from mediation. I refused to do this. But I came to Cairns in December last year to have a directions hearing in which I indicated that the parties should understand that while the Court was as anxious as they were to see this matter resolved by some form of mediation agreement, such time had passed as required them to commence the preparation of this matter for hearing. It appeared at that time that such emphasis had been placed on the negotiation of the Indigenous Land Use Agreement that preparation for hearing was an urgent task to be picked up. 8 That preparation for hearing necessarily underpinned the work that would otherwise have to be done in coming to a consent determination, which it was anticipated the Court would be asked to make. In December, I made programming orders to bring this matter on to a hearing. Deputy District Registrar Robson, with my knowledge and authority varied those orders in February 2004. 9 The applicants in this context say that to achieve a negotiated outcome over a substantial body of land they need to remove the four pastoralists and their land from the claim. 10 As I said, considerable time, effort and costs have gone into the claim insofar as it relates to the four pastoralists: time and effort and money of the four pastoralists themselves, the applicant, the Court and the Native Title Tribunal all funded by public funds both Commonwealth and State. If this were a usual piece of litigation, I would not allow a withdrawal and discontinuance at this stage other than on the clearest terms that no further proceeding could be brought. Given the structure of the Act that is not possible. Section 64(1A) is in the following terms: An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.) 11 The plain structure and meaning of those words is in my view to give a statutory right to amend the claim to reduce the area of land or waters covered by the application. The subsection is directed not to an applicant approaching the Court for permission to do anything; rather it is directed to the application which it is said by Parliament may at any time be amended in the fashion identified. This construction of the Act conforms with views expressed on other occasions by Judges of the Court. Although given that it conforms with my reading of the subsection, it does not require me to have recourse merely to comity in following what other Judges have said. 12 That being my view of s 64 and given that the application is pressed, subject to any question of an adjournment to which I will come, the application on the file may be amended. This may mean an application under ss 61 and 225 is brought by the pastoralist interests for a declaration as to a negative, that is as to the lack of existence of Native Title over the land excised pursuant to the application under s 64. That application, whether made under s 61 of the Act or perhaps s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 21 of the Federal Court Act 1976 (Cth) is something for the pastoralists to conclude. Mr Kempton has indicated that if the claim area is reduced by reason of the application under s 64 that will occur, that is, such applications will be brought. Therefore, most reluctantly because I have no choice, I am prepared to allow the amendment to the extent that my allowance has anything to do with the operation of s 64. There are other amendments sought in the notice of motion and in the application in the form exhibited to the affidavit of Ms Stinton, but there is no opposition to those. 13 An application for an adjournment was made by Mr Kempton orally in address. I do not propose to adjourn the notice of motion. Mr Kempton sought the adjournment on the basis that the parties should have one further attempt at resolving this given what is to be asked of me and the Court in the general directions hearing which will follow the disposition of this motion. It may be that Mr Kempton and his clients can prevail upon the applicant to hold off the formal steps of amending the application. I do not think that disposing of a motion will stand in the way of that. The order I make today will not finalise the position until steps are taken by the applicant to file relevant documents so amending the claim. Therefore, I think that the steps that Mr Kempton and his clients identified as possible are able to be taken, notwithstanding the disposition of today's motion. 14 Turning to the second order sought, at the moment I am not persuaded that the four pastoral leaseholders do not have an interest sufficient to entitle them to remain parties. Ms Phillips, perfectly reasonably, relied upon the form of the Form 5 filed by those parties at their joinder, which directed attention, hardly surprisingly, to the pastoral leases in their possession, which would obviously be affected by a claim for Native Title over that very land. No doubt the four pastoralists were not anticipating the particular confluence of circumstances that is present today. What I propose to do, however, given that Mr Kempton in one of his written submissions indicated that further evidence was possible, is to adjourn the disposition of order 2 for a further timetable for the filing of any evidence and submissions specifically directed to the interests of the four pastoralists taken individually. 15 The pastoral leaseholders are within 28 days of today to file affidavits and submissions as to their entitlement to remain as parties on the amended application. Within 14 days thereafter, the applicants are to file and serve any affidavits and submissions on that question. Then subject to any application by the parties, I will deal with the finalisation of that aspect of the motion on the papers. 16 Before turning to costs let me say something more about s 61. If applications under s 61 are to be pursued subject to hearing from the parties I would expect those applications to be filed promptly and at the moment see no reason why, if they are to be filed, they should not be filed within the same period of 28 days. However, I will not make a direction in that respect, but if - and I cannot control their filing in due course – the pastoral leaseholders wish to remain connected to this litigation and if I am of the view that they do not have sufficient interest to remain as parties on the applicant's claim as amended, they will need to show expedition in what they do under any s 61 application for them to keep up. 17 Turning to the question of costs, I raised the question of costs on 4 May at a directions hearing. Ms Phillips and the applicant, if I may say so respectfully, have perfectly properly brought forward a costs order that may go to ameliorating the position of the four pastoral leaseholders. The initial position of the pastoral leaseholders is, as I understand it, that they wish to have their costs of the proceedings to date paid. They are funded, at least hitherto in these proceedings, by the Commonwealth. I must take account of s 85A of the Act. I nevertheless have a broad discretion as to costs, but it is a discretion that not only must be exercised judicially but also is one informed but not governed by s 85A. A relevant consideration is public policy involved in seeing this matter, to the extent that it is possible, progress and move forward either to an agreed outcome or a litigated outcome, if that is necessary. 18 The applicants, I infer, are in the position that if they were ordered to pay costs that would or might affect their ability, at least in the short term, to progress this matter. Were this not a piece of litigation of a very different character than the usual piece of litigation I would order costs. However, in the light of s 85A, in light of the explanation of the conduct of the applicant, in the light of the fact that to a significant if not a complete degree the litigation is publicly funded, I do not propose to order that the applicant pay the four pastoralists' costs. 19 I am prepared to accept as relevant to the order as to costs I make the undertaking offered, which I take to be an undertaking to the Court in terms of paragraph 4 of the draft orders provided to the Court before 1.15 pm today. That undertaking is as follows: that the Native Title applicant, which is to be understood as the named applicant on behalf of the claim group, undertake that should a future native title determination application be filed on behalf of the Yalanji people over the areas presently subject to the interests of Messrs Brandt, Marshall, McLean and Harlow, where any of those persons remain as holders of an interest in those areas, then the costs of the present proceedings incurred by any of Messrs Brandt, Marshall, McLean and Harlow who remain may be recoverable from the native title applicants. The singular "Applicant" in the form of order is to be taken as the various persons named who I have referred to as applicants. 20 I would also make the following order: that I would reserve the question of costs and grant liberty to Messrs Brandt, Marshall, McLean and Harlow and the Commonwealth, through the Attorney-General or otherwise, to re-list this matter and otherwise argue the question of costs of this proceeding to date should any further claim be made in the future by the applicant or otherwise over the leasehold areas presently subject of interest of Messrs Brandt, Marshall, McLean and Harlow. 21 It is appropriate in the circumstances for me to record that if I were to hear that application I will need to be persuaded why all or a great proportion of those costs thus far expended would not have to be paid forthwith. That is not intended to bind, as it could not bind, either another Judge of the Court or myself on a future occasion, but is said for the purposes of the record and for the benefit of the parties. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop . Associate: Dated: 2 June 2004 Counsel for the Applicant: Ms S Phillips Solicitor for the Applicant: Cape York Land Council Counsel for the First Respondent: Mr P Flanagan SC with Ms S Brown Solicitor for the First Respondent: Crown Law Solicitor for Second and Third Respondents: MacDonnells Solicitors Solicitor for the Fourth Respondent: SM Coates, Solicitor & Notary Solicitor for the Seventh to Fifteenth Respondents: Mr D Kempton