FEDERAL COURT OF AUSTRALIA Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 Citation: Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 Parties: JAMES HILL & ORS ON BEHALF OF THE YIRENDALI PEOPLE CORE COUNTRY CLAIM v STATE OF QUEENSLAND & ORS File number: QUD 495 of 2006 Judge: LOGAN J Date of judgment: 19 March 2015 Corrigendum: 10 April 2015 Catchwords: NATIVE TITLE – applicant seeking leave to discontinue native title determination application – where reason for discontinuance is insufficient funds to proceed with trial – where subject land has lengthy litigious history of native title claims by applicant or persons having common apical ancestors with applicant – where present application on foot for more than eight years – where applicant previously required by Court to show cause as to why proceedings should be dismissed – where intensive case management progressed proceedings to trial in respect of separate question of connection and where agreement reached as to categories extinguishment of native title in the claimed area – where consent determination not possible – whether to exercise Court's discretion to grant leave to discontinue – whether conditions can be imposed upon discontinuance in respect of any future proceedings brought by applicant in respect of same claim area Held: grant of leave to discontinue would bring administration of justice into disrepute – delay in determination of native title fosters uncertainty and potential injustice on the part of responding parties – where the applicant is not vexatious, the Court does not have the power to impose conditions on future applications in granting discontinuance – application dismissed Legislation: Native Title Act 1993 (Cth) ss 61, 62, 85A Cases cited: Commonwealth Trading Bank of Australia v Inglis & Anor (1974) 131 CLR 311 cited Covell Matthews and Partners v French Wools Ltd (1977) 1 WLR 876 applied Levinge on behalf of the Gold Coast Native Title Claim Group v State of Queensland [2013] FCA 634 applied Levinge & Ors v Queensland (2012) 208 FCR 98 applied Tom Congoo v the State of Queensland (2014) 218 FCR 358 now High Court case number B391 of 2014 cited Visyboard Pty Ltd v Attorney-General for the Commonwealth (1984) 2 FCR 113 applied Date of hearing: 19 March 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 50 Solicitor for the Applicant: Mr Peter Gore as Town Agent for Dillon Bowers Lawyers Counsel for the State of Queensland: Mr K Barlow QC with Ms E Longbottom Solicitor for the State of Queensland: Crown Law Counsel for the Commonwealth of Australia: Ms C Klease Solicitor for the Commonwealth of Australia: Australian Government Solicitor Counsel for the Flinders Shire Council, Richmond Shire Council and Charters Towers Regional Council: Mr M Liddy Solicitor for the Flinders Shire Council, Richmond Shire Council and Charters Towers Regional Council: Gilkerson Legal Counsel for the Various Pastoralists: Mr M Liddy Solicitor for the Various Pastoralists: Thynne & Macartney Solicitor for the Glencore Coal Queensland Pty Limited (formerly Xstrata Coal Queensland Pty Ltd): Allens FEDERAL COURT OF AUSTRALIA Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 CORRIGENDUM 1 When originally published, the conditions promoted by the State referred to in paragraph 6 of the reasons for judgment were inadvertently omitted. These conditions have now been appended to the reasons. I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 10 April 2015 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 495 of 2006 BETWEEN: JAMES HILL & ORS ON BEHALF OF THE YIRENDALI PEOPLE CORE COUNTRY CLAIM Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: LOGAN J DATE OF ORDER: 19 MARCH 2015 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The interlocutory application for leave to discontinue filed by the Applicant on 5 March 2015 be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 495 of 2006 BETWEEN: JAMES HILL & ORS ON BEHALF OF THE YIRENDALI PEOPLE CORE COUNTRY CLAIM Applicant AND: STATE OF QUEENSLAND & ORS Respondent JUDGE: LOGAN J DATE: 19 MARCH 2015 PLACE: BRISBANE REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 Mr James Hill, Mrs Martina Jacobs and Mr Jeffrey Lammermoor comprise "the applicant" in respect of an application for the determination of native title on behalf of a native title claim group, the members of which might conveniently be described as the Yirendali People. That application is in respect of a large area of land in Queensland based around Hughenden and covers land within the Charters Towers Regional, Flinders Shire and Richmond Shire Local Government areas. The preponderance of the land claimed, more particularly described in the form 1 application, falls within the Flinders Shire Local Government area (some 85.74% of the land claimed). 2 The application was filed as long ago as 13 December 2006. Following assessment by the National Native Title Tribunal, the application was registered on 17 August 2007. It was subsequently notified as required by the Native Title Act 1993 (Cth) (the Act). 3 In all, there are 55 respondents. Those respondents include the State of Queensland and the Commonwealth of Australia, the latter by virtue of minor holdings of land relating to air navigation, as well as some land in respect of which native title may or may not be extinguished depending on the outcome of proceedings presently reserved on appeal in the High Court of Australia: Tom Congoo v the State of Queensland (2014) 218 FCR 358 (now High Court case number B391 of 2014). Other respondents, apart from the Local Governments mentioned, are companies which have mining interests and a large number of pastoralists. 4 The proceedings are presently set down for a trial in respect of the separate issue of connection, to commence on 29 June 2015. It will be necessary to say something further about the procedural history of this case shortly. 5 The applicant, by notice of motion filed on 5 March 2015, has sought leave of the Court to discontinue a proceeding. Leave is necessary for two reasons. Firstly, the return date fixed for the application has long since passed and, further, pleadings in respect of the issue for trial have closed. That apart, a native title application is a paradigm example of proceedings conducted by a representative party. Thus the effect of r 26.12(2) of the Federal Court Rules 2011 (Cth), given the absence of consent to discontinuance, and r 26.12(4) is that the applicant requires a grant of leave in order to discontinue the proceeding. 6 The respondents have diverse positions in respect of the granting of leave. The Commonwealth is disposed to consent to the granting of leave. The State submits that leave to discontinue should be granted, but only on conditions. The conditions promoted by the State, subject to a modification, which I shall mention later in these reasons for judgment, are appended to the reasons for judgment. The local governments, as well as the pastoralists, submit that leave to discontinue should be refused. They adopt as part of their submissions a submission also made on behalf of the Commonwealth, responsive to the State's submissions. The Commonwealth's submission further in relation to leave is that it is not possible for the Court to condition leave to discontinue in the way submitted by the State. 7 Glencore Coal Queensland Pty Ltd, formerly Xstrata Coal Queensland Pty Ltd, takes a neutral position. It neither consents to nor opposes the granting of leave to discontinue. None of the self-represented respondents chose to appear, neither did Telstra Corporation, nor Australia Pacific LNG Pty Ltd. 8 There was no difference between the parties as to the principles which attend the question of whether or not to grant leave to discontinue. Those principles might be summarised in this way: 9 A starting point, flowing from the language employed in the rules mentioned, is that the court possesses an unfettered discretion as to whether or not to grant leave to discontinue. Against that background observations made by members of the Full Court in Visyboard Pty Ltd v Attorney-General for the Commonwealth (1984) 2 FCR 113 (Visyboard v the Attorney-General for the Commonwealth) are pertinent: see Sweeney J at pp 142 to 143, Lockhart J at p 162, and Sheppard J at pp 184 to 185. Regard to the passages mentioned in the judgments of these members of the Full Court discloses that observations made by Graham J in Covell Matthews and Partners v French Wools Ltd (1977) 1 WLR 876 and 879 (Covell Matthews v French Wools) are something of a modern root authority. His Lordship stated, by reference to earlier authority: The principles to be culled from these cases are, in my judgment, that the court will, normally, at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The court should therefore grant leave if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he already gained in the litigation and should be ready to grant him adequate protection to ensure that any advantage he has gained is preserved. 10 As to that, and in the judgment under appeal in Visyboard v the Attorney-General for the Commonwealth, in a passage cited in the judgment of Sweeney J at pages 142-143, Woodward J stated: I would respectfully adopt Graham J's formulation of principles so far as it goes, but it leaves open the question as to what should be done in a case where leave cannot be granted without some injustice to the respondent, or in which it may not be possible or appropriate to ensure that every advantage which the respondent may have gained in the course of litigation is preserved. In my view, the matter must remain one for the exercise of the Court's discretion in each case, even if the interests of the respondent cannot be fully protected. I do not believe that Graham J was suggesting that unless the respondent's rights can be completely protected, an application for discontinuance must be refused. If he was implying that, then I must respectfully decline to follow his Honour to that extent. 11 On my reading of the judgments delivered in the Full Court in Visyboard v Attorney-General for the Commonwealth, each of their Honour's endorsed the qualification made by Woodward J of Graham J's observations in Covell Matthews v French Wools. I propose to adopt the approach to the exercise of discretion described by Graham J, subject to the qualification voiced Woodward J, and, as I understand it endorsed, by the members of the Full Court. 12 The starting premise for the applicant, in the submissions made by their solicitor, Mr Gore, was that the applicant ought not to be forced to trial against the will of the members presently comprising the applicant. It was submitted that discontinuance would not entail particular injustice to respondents. There would not be any current native title application in respect of the land the subject of the form 1 application. 13 The particular reasons which, on the evidence, have motivated the applicant to seek leave to discontinue, emerge from affidavits given both by Mr Gore as well as one of the members of the applicant, Mr James Hill. The long and the short of it is that the applicant does not have sufficient funds to incur the costs and expenses of conducting the trial fixed to commence on 29 June 2015. It is for that reason, rather than any lack of belief in the merits of the application that the applicant has decided, and it seems to me reluctantly decided, to seek leave to discontinue. In relation to the availability of funds to prosecute the litigation, it is a matter of record in the proceedings that, in July 2010, the North Queensland Land Council, a native title representative body, ceased to act for the applicant. Thereafter, the applicant has chosen to deploy moneys received by way of future act compensation towards the costs of prosecuting the application. Mr Hill also deposes that the North Queensland Land Council has refused to provide the applicant with funding to prosecute the Yirendali People's claim. 14 There is one matter which, if only to make it explicit, needs to be the subject of comment in respect of that refusal of funding by the native title representative body. I expressly draw no inference at all adverse to the applicant derived from the refusal of funding by the native title representative body. In particular, I draw no inference whatsoever adverse to the applicant or, for that matter, favourable to a respondent, in relation to the prospects or otherwise of the native title application resulting from the refusal of funding by the representative body. In my view, to draw any such inference would be subversive of legal professional privilege and antithetical to the exercise of judicial power for that reason. It is just a fact that the applicant has exhausted available means of funding, nothing more and nothing less. 15 The local governments and the pastoralists point to a procedural history, not just of the present case but also to earlier native title applications in support of the principal reason for their opposition to a grant of leave to discontinue. They submit that, if leave to discontinue is granted, and having regard to the disposition at some indeterminate time in the future on the part of the applicant or, at least, the native title claim group of which the applicant is presently a representative, to continue to prosecute a native title application, they will be left in a state of uncertainty as to whether or not native title as claimed exists. 16 As to that, the State puts that even, if there were a determination that the claim made by the Yirendali People for native title was without merit such that it was dismissed, that would not necessarily mean that native title did not exist in respect of the subject land. Others might lodge an application. That is true in theory but, in practice, the only claim at present is that made by the Yirendali People, and it is the present uncertainty as to whether or not there is merit in that claim to which the local governments and pastoral respondents point. 17 Further, it is part of the defence pleaded on behalf of the pastoralists that there is no native title in respect of the subject land. Thus the present proceedings can prove to be a vehicle via which absolute certainty in respect of native title, one way or the other, could be secured. The present stage of proceedings will not provide that particular certainty, for it is only a question of whether there is connection shown in respect of the Yirendali People's claim that will fall for trial commencing on 29 June. 18 There are other matters to which the local governments and pastoralists point which ought to be detailed. 19 Mr Greg Jones is the Mayor of the Flinders Shire and has given affidavit evidence on behalf of that particular local government. It is that local government which, as I have mentioned, is the local government predominantly by area affected in respect of the native title application. Mr Jones first entered local government in the Flinders Shire in 1994. He has thereafter successively held office as councillor, deputy mayor and, since the 2012 local government election, mayor. The point of mentioning that is that his term in local government embraces not just the length of time that the present application has been before the Court, but also embraces a lengthy prior history of native title litigation in respect of some or all of the subject land. 20 That particular litigation is detailed, in a way not gainsaid by any other party, at paragraph 21 of Mr Jones' affidavit and, more particularly, evidenced in documents which collectively comprise exhibit 1. 21 It was put on behalf of the State, in response to a question which I asked in the course of submissions, and again not gainsaid by any other party, that an analysis of the various applications described at paragraph 21 of Mr Jones' affidavit discloses that the applications concerned, whilst they have differing persons comprising the applicant, nonetheless have common apical ancestors. In some instances, the Yirendali People are shown as the applicant. In others, notwithstanding commonality of apical ancestor, the applicant native title claim group is described to include the Jirandali People, along with, in some instances, other native peoples. 22 The point is that there is a history of assertion of native title on behalf of persons having common apical ancestors which antecedes the commencement of the present proceedings. Each of those earlier proceedings has been progressively discontinued. The present proceedings, as instituted, can therefore be viewed as an endeavour on the part of the Yirendali People finally to secure a determination of native title in respect of a controversy which, in its earlier manifestations so far as filing is concerned, go back as far as 10 November 1997. 23 Some eight and a half years is a very long time for respondents to be left in a state of uncertainty as to whether land upon which pastoral, mining and local government interests are conducted or may in the future be conducted is subject to native title as claimed. It is also a very long time for the native title claim group, via the applicant, to be left in a state of uncertainty as to whether there is merit in the native title application. That particular uncertainty is fact enough to take into account. It is underscored, not replaced, in its relevance when one considers the earlier history to which I have referred. 24 Always relevant in any native title case, in my view, are the objects of the Act and the preamble to that Act. Of the objects, two in s 3 are of particular relevance: the provision for the recognition and protection of native title – paragraph (a); and the establishment of a mechanism for determining claims to native title – paragraph (c). 25 The provision for the recognition of native title and the related determination mechanism is by an exercise of the judicial power of the Commonwealth. The exercise of that judicial power may be consensual or, in the absence of consent, after a trial. It entails a determination according to law as to whether native title exists. In that determination, it is not only the applicant's interests which are relevant. It is to be remembered that respondents have an interest in whether or not land which they own or in some other way use is or is not affected by native title. The respondents in these proceedings have waited a very long time indeed for certainty as to whether they may use the land with or without the knowledge that native title does, as claimed, exists. 26 The procedural history of this case whilst it has been before the Court is relevant also, in my view. That procedural history discloses that, after the North Queensland Land Council ceased to act, the applicant was ordered to bring on a notice in respect of discontinuance by August 2010. In the result, such an application was not filed and the applicant was required to show cause in March 2011 why the proceedings should not be dismissed. It was following that that Dillon Bowers Lawyers came to be the solicitors for the applicant, with Mr Gore acting as town agent. The applicant persuaded me in respect of showing cause that further opportunity should be given to prosecute the application. Since then, the case has been under intensive case management by a registrar with periodic review by me either at regional directions hearings (conducted in accordance with a previous practice where native title work available responsibly admitted of conducting hearings in regional Queensland) or in Brisbane. 27 The orders made in case management since the applicant showed cause in 2011 against dismissal have been directed towards the refinement of issues both as to connection as well as extinguishment. As to the latter, a great deal of work has been undertaken by the parties with good will and also guidance from the registrar. That has resulted in agreement being reached in relation to whether particular types of tenure extinguish or do not extinguish native title within the claim area. Much of the claim area is the subject of types of tenure which would either extinguish or at least partially extinguish native title. 28 Other orders made in case management have been directed towards securing, if possible, a consensual resolution of what is usually the other principal issue in a native title case, namely, the existence or otherwise of connection with the land the subject of the claim, or at least some of it. As to that, there have been disparate outcomes. The Commonwealth is disposed to concede, at least for the purposes of consent determination, connection in respect of land in which it has an interest. The State has a different view, as do the other respondents. 29 It is for each party to litigation to make its own value judgment, taking into account duties owed not just to the client but to the Court (by virtue of confirmatory provision in the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act)) in relation to the making of concessions in litigation. It may well be that the Commonwealth's particular concession has given particular hope to the applicant. That, though, is not a matter of present relevance in relation to whether or not to grant leave to discontinue. Nor is it, other than a matter of record, a matter of present relevance that there are differences in position in relation to connection as between the varying levels of government represented in the proceedings. Whatever tensions are engendered by such differences of position are matters for political forums, not for this Court. All that is entailed is that this is not a case where even in respect of the portions of land in which the Commonwealth has an interest, a consent determination is possible. 30 If I considered that it were lawfully possible to make a determination in respect of land where the Commonwealth is disposed to consent to connection, then I would not hesitate to divide the application such as to leave the contested portions for trial and a consensual balance for consent determination. That course is not open because s 87A materially requires the consent of all parties interested in the land concerned, not just that of the Commonwealth. So the position is that the case is one which requires an exercise of judicial power in order to determine, in the first instance, the separate issue of connection and, depending on that outcome, other issues, perhaps also including that pleaded on behalf of the pastoralists. 31 Should the applicant, then, given the present disposition of the persons comprising the applicant not to continue to seek the invocation of judicial power, be permitted to discontinue? The answer to that, in my view, is to be found, in the circumstances of this case, in observations made by Rares J in Levinge on behalf of the Gold Coast Native Title Claim Group v State of Queensland [2013] FCA 634 at [49] (Levinge v State of Queensland), where his Honour, having referred to Visy Board v The Attorney General for the Commonwealth, stated: If the applicant were granted leave to discontinue, it could commence fresh proceedings over the same subject matter as and when it chose. The applicant has had a full opportunity to litigate its claim in these proceedings over the seven years they have been on foot. It would be contrary to the interests of justice, the parties, and the community, to allow it to begin afresh. Indeed, if the applicant were free to do so, and commenced again, that conduct would bring the administration of justice into disrepute among right-thinking people: (Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93 – 94 [28] per French CJ, Gummow, Hayne and Crennan JJ. 32 That is this case. The applicant here has had a full opportunity to litigate its claim in these proceedings over the in excess of eight years that they have been on foot. Programming orders directed towards bringing the case to trial were made last year. It was in the face of the setting of the case down for trial that the applicant sought leave to discontinue, but not on the basis that it represented to the respondents or anyone else that there would be no further claim. There comes a time when there must be finality to a controversy. In respect of native title, that finality is given either by consent, or after trial, in either case by an exercise of judicial power. 33 I respectfully agree with each and every part of the passage which I have quoted from Rares J's judgment in Levinge v State of Queensland. I am most firmly of the view that to grant leave to discontinue in these proceedings, given their history, would bring the administration of justice into disrepute. That particular conclusion I reach just on the history of the present application. That position is underscored, not reached, by reference to earlier litigious history in relation to native title with respect to some or all of the subject land by persons having common apical ancestors to those in the present native title claim group. 34 Also relevant in relation to the question of discontinuance, in my view, are observations made by Reeves J in an earlier stage of the Gold Coast Native Title litigation; namely, Levinge & Ors v Queensland (2012) 208 FCR 98 (Levinge v Queensland). His Honour's judgment in that case is noteworthy amongst other things for its reference to the impact of evidence as to lack of funding. His Honour stated at paras 18 and 19: [18] The application to vacate the June 2013 trial dates was unsuccessful. That should not have come as a surprise to the Applicant because this Court has generally been reluctant to accept a lack of funding, or representation by a party, as a sufficient reason to delay a trial of native title proceedings: see, for example, the observations of the Full Court in Bennell v State of Western Australia [2004] FCAFC 338 at [37]. There is a variety of reasons why this is so. One reason is that native title proceedings do not pertain to funding, or the independent financial affairs of the parties involved in them: see Sambo v State of Western Australia (No 2) [2010] FCA 927 at [47] per McKerracher J and Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073 at [25] per Jagot J. Another reason is that the Court cannot allow the policies of the Executive Government in relation to the allocation of funding for native title claims to paralyse its processes once its jurisdiction has been properly invoked: see Kokatha Native Title Claim v State of South Australia [2006] FCA 838 at [10] per Finn J. [189] If a failure to garner public funding for a claim provides no justification for delaying it, there is all the more reason why a lack of private funding should be rejected as a justification. If that were not so, the management of any litigation so affected would become dependent upon the individual choices made by a particular party in the allocation of its private financial resources. Thus, the Court would lose control over the management of the litigation and its future progress would, instead, be determined by the idiosyncratic choices of a particular party, decisions which obviously could not be the subject of any effective review by the Court. Furthermore, in that state, the litigation could be delayed for long periods, perhaps indefinitely, while the particular party's financial position waxed and waned. If that party happened to be the moving party before the Court, the potential for injustice to any responding party is obvious. It could mean that a respondent party could be forced before the Court and then locked into litigation indefinitely with all the uncertainty, stress and financial pressure that litigation often causes. Of course, none of these observations should be taken to suggest that the Court will not take into account sudden or unexpected events that affect a party's ability to progress a piece of litigation, or a reasonable request for more time to undertake a step in litigation arising from pressure of work, illness, or other similar causes. However, while such requests are common place in native title litigation, allowances are still generally treated as the exception, rather than the rule. 35 This, of course, is not an application to delay a trial. Rather, it is an application to discontinue once trial dates have been fixed. It does though entail in prospect the subjection of each of the respondents to the incurring of, if leave is granted, expense at some indefinite time in the future, according to whether or not the native title claim groups funds have waxed rather than waned. 36 It is relevant to take into account the waning of funds on the part of the applicant and I do take that into account. Not all of the expenses incurred by respondents to date may necessarily be costs thrown away if leave to discontinue is granted. I also take that into account. Prima facie though, the proceedings are ones in which there will be no compensatory order as to costs in the event of discontinuance, having regard to the operation of s 85A of the Act. That ,any respondents, in one way or another, are funded from one or other of the consolidated revenues of the Commonwealth or the State should not be regarded, in my view, as a factor of no moment in relation to prejudice. It is still good money if it is public money and there is prospect in this case that good money will be thrown away by respondents and thus by the public purse by a granting of leave to discontinue. 37 I also take into account that the application for leave to discontinue is made against a background where there have already been discretionary value judgments made by the Court in case management reflecting the difficulties entailed for the applicant in relation to funding. Even so, there does come a time when an applicant must – having invoked a jurisdiction and having brought respondents to a stage where a trial, which would give certainty, looms large – must be bound to continue the litigation, even though that it is not that applicant's particular wish. 38 There is a question remaining as to whether leave to discontinue should be granted subject to conditions. Upon reflection, the conditions promoted by the State were modified in the course of submission following a question raised by me, such that the condition presently set out in paragraph 1(a) would become, instead, part of what is filed with the other materials set out in paragraph 1(b)(i) through to (v). 39 Were the applicant to be regarded as vexatious, I consider that it would be possible for the Court to impose conditions in respect the bringing of further proceedings. Prima facie, it is the right of any person to approach a court exercising Commonwealth judicial power to seek an exercise of that judicial power in respect of a particular asserted right said to fall within the Court's jurisdiction. If a person proves to be vexatious in relation to the exercise of such a right, then that right can be qualified so as to preserve the integrity of the administration of justice and prevent abuse of process. 40 That, though, is not this case. It is not submitted by any respondent party that the applicant is vexatious. It is certainly not a view that I reach. This application passed a registration test, and it has been prosecuted, albeit at times with difficulty, to the point of the making of programming orders for trial. There are prejudices which would attend the granting of leave to discontinue, but I do not consider those prejudices to be such as to classify the initiation and prosecution of the native title application as either vexatious or an abuse of process. 41 Given that that is so, the Commonwealth's submission is that, having regard to observations made by Barwick CJ and McTiernan J in Commonwealth Trading Bank of Australia v Inglis & Anor (1974) 131 CLR 311 (Commonwealth Trading Bank v Inglis), in particular, at pp 317 to 319, there is no power to impose conditions of the kind promoted by the State. That particular view is one supported by observations made by Reeves J in Levinge v Queensland at paragraphs 55 and 61 to 62, observations which were made by reference to Commonwealth Trading Bank v Inglis. 42 The requirements in respect of the material which must be filed in the Court in respect of a native title application are those set out in s 62 of the Act. The conditions promoted for the State are in addition to those. It is said that they would not, if imposed, prevent the filing of an application which comprised the s 62 condition material. 43 That is true insofar as it goes, but it would then leave an open question as to whether an application conforming with s 61 and containing the information required by s 62 ought further to progress or ought to be struck out because one or more of the conditions promoted had not been complied with on its filing. In my view, in respect of an application by an applicant who is not vexatious, it would be a gloss on the requirements of the Act to impose conditions of this sort. 44 There are other reasons as well which dispose me against the imposition of such conditions. One condition would require the applicant to demonstrate that it has on reasonable grounds for expecting or expects to obtain sufficient funds to prosecute the application to trial if necessary. Quite how much might be needed in order to comply with that particular condition is a subject upon which reasonable people might reasonably differ. An applicant ought not, in my view, to be placed in jeopardy of having its application struck out for breach of condition which has that quality. 45 The requirement for affidavits from claimants supporting each of the facts is also a subject upon which reasonable people might reasonably differ as to whether the evidence did, indeed, support a particular fact or did not. The adequacy or otherwise of the pleading might also be a subject upon which reasonable people might reasonably differ. In the end, of course, the Court would have to come to a view on a strike-out application in respect of an alleged breach of condition as to whether a statement of claim was or was not compliant and as to whether evidence did or did not support the particular material facts pleaded, but it would be difficult in advance for an applicant to determine with certainty whether or not its application was or was not compliant. 46 Were the applicant given leave to discontinue and if a later application were filed and passed the registration test, there would be much to be said in case management terms in the focusing of the applicant at an early stage on its responsibilities as a litigant in the way set out in the conditions promoted by the State. But the imposition of the promoted conditions does not provide what one might term something of a half-way house, whereby the leave to discontinue could be granted but subject to those particular conditions. 47 The other difficulty about the imposition of those conditions is that it would still leave other respondents subject to the uncertainty to which I have already referred. 48 For these reasons, then, the application for leave to discontinue is dismissed. 49 Application was initially made on behalf of the various respondent pastoralists and local governments for costs to be reserved in respect of the leave application. Upon my indicating that, in my view, it was better to deal with costs at once, application was then made on behalf of those respondents for costs. Each of the other respondents did not seek an order for costs. 50 Whether or not to order costs is a matter which requires the exercise of the discretionary power to award costs granted by s 43 of the Federal Court of Australia Act. In the exercise of that discretion, s 85A of the Act intrudes. It intrudes to the extent that, unless there is unreasonable conduct of a kind described in a non-exclusive way in s 85A(2), each party much bear his or her own costs. Here, in my view, the applicant, in respect of the application for leave to discontinue, brought that application as soon as it became apparent that it was not possible to secure a consensual determination, notwithstanding best endeavours by each of the parties. The applicant then decided that its funds were not sufficient further to prosecute the case and, in my view, as soon as reasonably possible thereafter, brought the application for leave to discontinue. I do not consider that the bringing of the application for leave was an unreasonable act, although, as it happened, it is not an application which I am disposed to uphold. For these reasons, in respect of the application for leave to discontinue, I make no order as to costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 2 April 2015 ANNEXURE – CONDITIONS 1. Any future native title determination application made by the Applicant or any other persons on behalf of any of the persons comprising the Native Title Claim Group (being the descendants of Albert Hill, Henry Major Luco, Philip and Ida Lammermoor, Polly and Kiara (Kyra) (Kara) Christison, and Maggie Chermside) in respect of the whole or part of the area of land and waters the subject of this proceeding: (a) specify each of the lots claimed, together with any watercourses not forming part of a lot; (b) be filed together with the following materials: (i) a copy of this order; (ii) a statement of claim; (iii) affidavits from claimants supporting each of the facts concerning the claim group and the claim group's connection to the land and waters in the claim area that are pleaded in the statement of claim; (iv) a report by a person qualified as an anthropologist regarding each of the facts concerning the claim group and the claim group's connection to the land and waters in the claim area that are pleaded in the statement of claim and that concern the anthropologist's areas of expertise; and (v) evidence demonstrating that the claim group has, or on reasonable grounds expects to obtain, sufficient funds to prosecute the application to resolution (including to trial if necessary).