Federal Court of Australia Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 915 Appeal from: Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 2) [2022] FCA 593 File number: WAD 109 of 2022 Judgment of: COLVIN J Date of judgment: 8 August 2022 Catchwords: PRACTICE AND PROCEDURE - application for leave to appeal - where primary judge made an abuse of process finding - where primary judge made orders allowing for the filing and hearing of any costs application if an in-principle agreement was not confirmed - whether the orders of the primary Judge are in the form of case management orders - whether leave should be refused on that basis - leave not refused Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 7 Date of hearing: 8 August 2022 Counsel for the Applicant: Mr G McIntyre SC Solicitor for the Applicant: Corser & Corser Counsel for the State of Western Australia: Mr D Gorman Solicitor for the State of Western Australia: State Solicitor's Office Counsel for Mr D Yarrow Wajarri Yamatji #1, Wajarri Yamatji #3, Wajarri Yamatji #7, Nanda People; and Nanda People #3: Solicitor for Yamatji Marlpa Aboriginal Corporation Wajarri Yamatji #1, Wajarri Yamatji #3, Wajarri Yamatji #7, Nanda People; and Nanda People #3: ORDERS WAD 109 of 2022 BETWEEN: LEEDHAM PAPERTALK, GLENDA JACKAMARRA, MALCOLM PAPERTALK, JAMIE JOSEPH, KAREN JONES, CHARLES GREEN, CHARLES COLLARD AND RAYMOND MERRITT Applicant AND: STATE OF WESTERN AUSTRALIA (and others named in the Schedule) Respondent order made by: COLVIN J DATE OF ORDER: 8 AUGUST 2022 THE COURT ORDERS THAT: 1. The application for leave to appeal be heard and determined concurrently with any appeal. 2. The hearing be listed for an estimate of 2 hours. 3. In accordance with Practice Note APP2, the applicant file and serve Parts A and B of the Appeal Book by 4.00 pm on 29 August 2022. 4. In accordance with Practice Note APP2, not later than 4.00 pm on 9 September 2022, the applicant file and serve on the respondent: (a) an outline of submissions in support of the appeal; and (b) a chronology of the relevant events. 5. In accordance with Practice Note APP2, not later than 4.00 pm on 30 September 2022, the respondent file and serve on the applicant an outline of submissions in response to the appeal. 6. In accordance with Practice Note APP2, not later than 4.00 pm on 14 October 2022, the applicant file and serve on the respondent any submissions in reply. 7. In accordance with Practice Note APP2, not later than 4.00 pm five business days before the hearing, the applicant file and serve on the respondent Part C of the Appeal Book. 8. Outlines of submissions are not to exceed 10 pages in length, including any annexures, and be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis. 9. In accordance with the Special Measures Information Note (SMIN-5), all parts of the Appeal Book and List of Authorities be provided to the Court in an electronic format and must: (a) include an index which contains an individual hyperlink to each document included in the index; (b) comprise only PDF documents which: (i) are in native format or, where impracticable to be provided in that form, scanned and text searchable format; (ii) include appropriate bookmarks; (iii) include as the file name the corresponding tab number in the index followed by a sufficient descriptor of the document or authority; (c) be provided to the Court in the manner prescribed by the Associates to the Full Court bench. 10. Outlines of submissions and chronologies be prepared in accordance with SMIN-5. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) COLVIN J: 1 Three native title claim groups reached an in-principle agreement to resolve overlapping native title claims in respect of an area near Geraldton in Western Australia. The meetings of each of the native title claim groups were held to approve the in-principle agreement and in, June 2021, at the meeting convened for the Mullewa Wadjari group members, it was decided to contest the other native title claims and therefore not give effect to the in-principle agreement. 2 The primary judge found that in all the circumstances, the Mullewa Wadjari applicant had abused the process of the Court in the way in which it had gone about its dealings with the Court and with other claim groups concerning the in-principle agreement. The other claim groups sought an order for payment of wasted costs. The primary judge decided to allow a further opportunity to the Mullewa Wadjari applicant to consider whether to join in the in-principle agreement and to convene a further meeting of claim group members for that purpose. The orders made allowed the other claim groups to apply for costs if a decision was made not to honour the in-principle agreement. 3 At a further meeting of the Mullewa Wadjari applicant, it was decided not to give effect to the in-principle agreement. The other claim groups then sought to pursue an application for costs. The Mullewa Wadjari applicant seeks leave to appeal the orders made by the primary judge. It is clear that the primary judge has determined that there has been an abuse of process. At any further hearing concerning wasted costs, it will not be open to the Mullewa Wadjari applicant to challenge that finding. So much is clear from the reasons for decision of the primary judge in Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 2) [2022] FCA 593 at [2]. 4 The other claim groups say that leave should be refused on the basis that the orders made concerned matters of practice and procedure. They submit that the orders made simply timetable the filing of materials on the application for costs and although the orders are expressed to provide for leave to bring an application by a nominated time, they submit that the orders simply timetable the steps in an application that had already been made by the other claim groups. I am not persuaded that this is simply a case where the orders the subject of the application for leave to appeal concern only the way in which proceedings will be conducted. It seems to me that they record a substantive determination, albeit an interlocutory determination, to the effect that the Mullewa Wadjari applicant has abused the Court's process. 5 The consequence of the decision by the primary judge that the proceedings were an abuse of process, whether that decision be described as a determination of the application or simply a finding along the way, is that the other claim groups can seek an order for wasted costs and can do so on the basis of a finding that the proceedings are an abuse of process. 6 A decision of that kind is significant and in the present case, might expose the Mullewa Wadjari applicant to a costs order in excess of $100,000. In those circumstances, I am not satisfied that this is a case where it is clear that leave to appeal should be refused on the basis of the authorities to the effect that the Court exercises caution and, in some instances, what is described as extreme caution, where the subject matter of the appeal is a question of practice or procedure. There are other matters which the other claim groups seek to raise in opposition to the grant of leave to appeal. In all the circumstances, I consider the most efficient course is for the application for leave to be allowed to proceed and for the application for leave and any appeal to be heard together. 7 As I have indicated in the course of submissions, I should not be taken to have expressed any final view as to any basis upon which leave to appeal might be refused, including a submission which relies, in whole or in part, upon the characterisation of the orders the subject of the application for leave as orders concerned with a matter of practice or procedure. I am simply satisfied that this is not a clear case where leave should be refused, and it is appropriate to list the application for hearing. So that being the position, I propose following this hearing to issue from chambers the standard orders in relation to the timetabling of the appeal on the basis that the hearing will be listed for an estimate of two hours. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate: Dated: 9 August 2022 SCHEDULE OF PARTIES WAD 109 of 2022 Respondent: Wajarri Yamatji #1 (WAD28/2019) COLIN HAMLETT, GAVIN EGAN, DAVID JONES, NAME WITHHELD FOR CULTURAL REASONS, ROCHELLE BAUMGARTEN, TIM SIMPSON, PAM MONGOO, ROBIN BODDINGTON, ANTHONY DANN, JUNE PEARCE, CARRUM MOURAMBINE, ROBERT BUDD, PATRICIA NOLA COUNCILLOR, LANCE MONGOO, ELIZABETH PAPERTALK, CHARLES SNOWBALL JNR, DAVID WALGAR, MAX PRIOR AND DONALD RYAN Wajarri Yamatji #3 (WAD32/2018) COLIN HAMLETT, JUNE PEARCE, DAVID JONES, ERIC SIMPSON, TIM SIMPSON, GAVIN EGAN, GEOFFREY MONGOO AND DAVID WALGAR Wajarri Yamatji #7 (WAD611/2018) GAVIN EGAN, TIM SIMPSON AND GEOFFREY MONGOO Nanda People (WAD30/2019) VIOLET DRURY COLLEEN DRAGE, JOHN STEPHEN DRAGE, STEVEN KELLY (FATHER OF MARRICK KELLY), STEVEN KELLY (GRANDSON OF CORNELIUS KELLY), WILLIAM MALLARD JR, WILLIAM MALLARD SR, NORA MALLARD, GWEN MITCHELL, HELEN NUTTER, ANNETTE PEPPER, JUNE RUFFIN, MARY TULLOCK, GERALD JOHN WHITBY, LORRAINE WHITBY AND JANET WILTON Nanda People #3 (WAD176/2019) DEREK DRAGE, HELEN NUTTER, ANNETTA PEPPER, DOUGY RYDER AND DELVEEN WHITBY