FEDERAL COURT OF AUSTRALIA

Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 2) [2022] FCA 593

ORDERS

THE COURT ORDERS THAT:

1.    By 10 June 2022, the Mullewa Wadjari applicant is to notify the members of the native title claim group for the Mullewa Wadjari of a claim group meeting to be held on or before 25 July 2022.

2.    The notification under order 1 must:

(a)    inform the native title claim group that the Court has ordered the Mullewa Wadjari applicant to convene the claim group meeting;

(b)    state that the business of the claim group meeting is for the native title claim group to decide as a group whether or not to honour the in-principle agreements reached at mediation between representatives of the Mullewa Wadjari and Wajarri Yamatji in February 2019 and Mullewa Wadjari and Nanda in May 2019 by:

(i)    the native title claim group directing the Mullewa Wadjari applicant to enter into an agreement with Nanda concerning the cultural heritage interests of Mullewa Wadjari in the Nanda claim area; and

(ii)    approving the Mullewa Wadjari applicant discontinuing the Mullewa Wadjari claim;

(c)    state that, in the event the Mullewa Wadjari claim group decides not to honour the mediation outcomes, the Court has given the Nanda applicant and the Wajarri Yamatji applicant an opportunity to apply for compensation (by way of cost orders) for the time and resources the Wajarri Yamatji and Nanda parties have expended, in reliance on the actions of the Mullewa Wadjari applicant, and the Court will listen to all parties’ arguments about this and decide whether to order the Mullewa Wadjari applicant to pay those costs of the Nanda and Wajarri Yamatji; and

(d)    include a copy of the Court’s published summary of the reasons for judgment in Papertalk on behalf of the Mullewa Wadjari People v Western Australia [2022] FCA 221 and a hyperlink to the Court’s reasons for judgment;

(e)    include a copy of the present orders and a hyperlink to the Court’s reasons for judgment for the present orders.

3.    By 10 June 2022, the Mullewa Wadjari applicant is to take all reasonable steps to post the summary of the Court’s decision, and a hyperlink to the Court’s reasons for judgment, and to these reasons for judgment, on any relevant websites and social media sites which it controls or to which it has access, and ask Yamatji Marlpa Aboriginal Corporation to post the same information on its website.

4.    The Mullewa Wadjari applicant is to convene the claim group meeting by the date specified in the notice given to the native title claim group.

5.    Subject to any further order, and in accordance with r 5.21 of the Federal Court Rules 2011 (Cth), if the Mullewa Wadjari applicant fails to comply with order 4, the Mullewa Wadjari native title claim (WAD 21 of 2019) stands dismissed.

6.    All members of the Mullewa Wadjari applicant must attend the claim group meeting.

7.    If, prior to the claim group meeting, any member of the Mullewa Wadjari applicant considers they have a reasonable excuse for not attending the claim group meeting, they must make an interlocutory application, supported by affidavit material, seeking a variation of order 6 of these orders.

8.    The Mullewa Wadjari applicant is to invite representatives of Yamatji Marlpa Aboriginal Corporation, in its capacity as the representative body under the Native Title Act 1993 (Cth) for an area that includes the Mullewa Wadjari claim area, and representatives of the State, to attend and participate in the claim group meeting.

9.    The claim group meeting is to be facilitated by an independent person agreed between the Mullewa Wadjari applicant, the Nanda applicant, the Wajarri Yamatji applicant and the State prior to the claim group meeting.

10.    By 4 pm on the tenth working day after the claim group meeting, the Mullewa Wadjari applicant is to file a report to the Court signed by all members of the Mullewa Wadjari applicant describing the conduct of the claim group meeting, and the outcomes. The report must include the following:

(a)    whether, as a group, the Mullewa Wadjari native title claim group decided it is prepared to honour the mediation agreements in principle reached with the Nanda and Wajarri Yamatji parties, or decided it is not prepared to do so;

(b)    the names of the members of the applicant who attended the meeting;

(c)    the names of the native title claim group members who attended the meeting who are not members of the Mullewa Wadjari applicant;

(d)    the names of all other persons who attended the meeting; and

(e)    any resolutions voted on at the meeting, and whether or not the resolutions were carried.

11.    If the report filed in compliance with order 10 states that the Mullewa Wadjari native title claim group has resolved not to honour the mediation agreements in principle reached with the Nanda and Wajarri Yamatji parties, the Nanda and Wajarri Yamatji applicants have leave to file, within 10 working days of the filing of the report, any interlocutory application for costs incurred by the Nanda applicant and the Wajarri Yamatji applicant in reliance on the actions of the Mullewa Wadjari applicant, but thrown away for failure to honour the mediation agreements in principle, including identification of any lump sum costs claimed by each of the Nanda and Wajarri Yamatji applicants.

12.    Any interlocutory application filed pursuant to order 11 should be accompanied by any affidavit material upon which those parties seek to rely, and an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

13.    If the Mullewa Wadjari applicant opposes the relief sought in any interlocutory application, it must file submissions and any affidavit material upon which it seeks to rely within 10 working days of the filing of the interlocutory application, including a Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

14.    Subject to any request by the parties for an oral hearing, any interlocutory application filed pursuant to order 11 will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Background

1    These proceedings concern overlapping claims for native title in the Geraldton region of Western Australia. Following protracted mediation and negotiation between the competing applicants, in-principle agreements were reached to withdraw the claims made on behalf of the Mullewa Wadjari People, in return for certain alterations of position by the Nanda and Wajarri Yamatji applicants. After considerable delays, and more than three and a half years since the beginning of mediation, following what purported to be a meeting of the claim group for the Mullewa Wadjari People, the Mullewa Wadjari applicant informed the Nanda and Wajarri Yamatji applicants that it would not implement those agreements. An account of these events and the context in which they occurred is provided in Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [17]-[107], and in a published summary of that judgment.

2    In Papertalk, the Court determined that there was no enforceable agreement between the relevant parties, and it was not appropriate at that stage for the Mullewa Wadjari overlap claims to be dismissed as an abuse of process. However, the Court was satisfied that the Mullewa Wadjari applicant’s conduct amounted to an abuse of the processes of the Court, in particular its mediation processes.

3    At [230]-[239], the Court outlined its preliminary views about what relief would be appropriate in respect of its finding of an abuse of process. It is appropriate to reproduce these views in full.

I set out below a framework of the orders which I am presently inclined to consider may achieve that objective. I will hear the parties’ submissions on this framework, and on any alternative proposed orders, in due course after the parties have had an opportunity to consider these reasons.

The Mullewa Wadjari applicant should be ordered to conduct a meeting of the Mullewa Wadjari claim group, and in preparation for that meeting to circulate and distribute the summary of these reasons for judgment which the Court has prepared. It should be ordered to post that summary on relevant websites and social media sites, and ask YMAC to post it on its website. The purpose of the further meeting will be to invite the Mullewa Wadjari claim group, as a whole, to consider whether, having seen what the Court has said, they are prepared to honour the position their representatives encouraged the Nanda and Wajarri Yamatji groups to rely upon and to act in accordance with, and are prepared to discontinue any Mullewa Wadjari claim in the two overlap areas.

An independent facilitator should conduct that meeting. It seems to me that it may be wise, even if not the subject of an order, that counsel and instructing solicitors who have been involved to this point on behalf of the Mullewa Wadjari are not involved in the conduct of the meeting.

If they are prepared to do so, the Court could direct a lawyer or lawyers for the State to attend that meeting and to provide such assistance as they consider appropriate. Of course, lawyers and others from YMAC may also seek to assist, as the responsible representative body for the region.

All members of the Mullewa Wadjari applicant should be directed to attend the meeting. A majority of members of the Mullewa Wadjari applicant appear to have been absent from almost all of the key events which have produced this situation. That is a failure of their responsibilities as members of the Mullewa Wadjari applicant.

It seems likely to be the case that YMAC will need to provide funds for the conduct of the meeting, and the Court should hear YMAC’s position on providing such funding, and how if at all the funds might be kept to an absolute minimum.

A deadline by which the meeting must be held should be imposed. The Court could well consider the holding of this meeting as the central evidence that the Mullewa Wadjari claim group wishes to prosecute its native title application over the overlapping areas with the Nanda and Wajarri Yamatji claims, either by honouring the mediation outcome, or by rejecting it once and for all and seeking to go to trial. If the meeting is not held by the deadline, the Court might treat that failure as a failure to prosecute the Mullewa Wadjari application in the overlap areas and it might dismiss the Mullewa Wadjari application insofar as it overlaps with the Nanda and Wajarri Yamatji claims on the basis of want of prosecution.

If the meeting is held by the deadline, then after the meeting the Mullewa Wadjari applicant could be directed to report back to the Court, in writing and signed by all members of the Mullewa Wadjari applicant, ahead of a case management hearing on a date to be fixed. The report should inform the Court whether, as a whole, the Mullewa Wadjari claim group are prepared to honour the mediation outcomes reached with the Nanda and Wajarri Yamatji parties, or are not prepared to do so. Meeting resolutions should be attached so that the Court can see how many people attended, and what resolutions were proposed and voted on.

If the Mullewa Wadjari claim group as a whole is prepared to honour the mediation outcomes, the Court will hear all parties on next steps. If it is not, then the question of who holds native title in the overlap areas will need to be set down for trial. The Court may consider whether there should be a sum paid by the Mullewa Wadjari applicant as security for the costs of the trial. The conduct of the trial should be subject to tight deadlines, and to strict measures to keep costs to an absolute minimum, including consideration of whether there should be limits on the number of witnesses, and how any expert evidence might be contained. Consideration might be given to whether there should be self-executing orders dismissing the proceeding for want of prosecution if deadlines are not complied with by the Mullewa Wadjari applicant.

If the Mullewa Wadjari claim group collectively decide not to honour the mediation outcomes, my present view is that there is a proper basis for the Court to consider whether there should be compensation (by way of costs orders) for the tremendous amount of legal time and resources the Wajarri Yamatji and Nanda parties have expended, in reliance on the actions of the Mullewa Wadjari applicant, but which would have been thrown away. Whether or not the State seeks to be included in any compensation for costs should be addressed. It might be perceived as unjust, having found an abuse of process, for the Court not to order some compensation by way of legal costs. There could be a question whether, to ensure responsibility is taken by those who are on the evidence responsible for the abuse of process, costs orders should be against those people present at each of the mediations, and/or each of the members of the Mullewa Wadjari applicant who are responsible for instructions given to their lawyers. It is these individuals who bear the responsibility for not being candid over a period of three years with their neighbours, and/or for treating the Court’s mediation process as something they could simply disregard. To be clear, there is no suggestion YMAC should incur any liability for those costs.

4    The views above were formed on the basis that, the rights in issue being communal rights, it was the responsibility of the Mullewa Wadjari claim group as a whole to decide whether to honour the in-principle agreements. The Court was not persuaded, on the evidence adduced by the Mullewa Wadjari applicant, that the position purportedly taken on behalf of the claim group in rejecting the in-principle agreements reflected the views of all or even most of its members, or was a product of fully-informed decision-making of the wider Mullewa Wadjari claim group: Papertalk at [227]-[229]. Ultimately, the Court decided to invite the parties’ submissions on the framework suggested as a preliminary view in the Court’s reasons, as well as any proposal for alternative or further orders, either as an agreed position or by way of competing submissions and proposals: Papertalk at [230].

The parties’ positions

5    The parties’ submissions and proposals have now been received. The parties were unable to reach agreement on proposed relief. The Nanda and Wajarri Yamatji applicants filed proposed orders that they submitted were consistent with the Court’s proposed framework in Papertalk. They agreed with the Court that the framework was appropriate because it was ultimately the responsibility of the Mullewa Wadjari claim group to decide whether to honour the in-principle agreements, but that the Mullewa Wadjari applicant had not established that the claim group had formed a final position on the outcomes of mediation between the Mullewa Wadjari applicant and the Nanda and Wajarri Yamatji applicants.

The Nanda and Wajarri Yamatji applicants’ proposed orders

6    The Nanda and Wajarri Yamatji applicants’ proposed orders may be summarised as follows.

7    The Mullewa Wadjari applicant must notify the members of its claim group of a meeting to be held in approximately a month’s time from the date of the Court’s orders. The notification must specify that the meeting has been ordered by the Court, and that its purpose is to determine whether the Mullewa Wadjari applicant should be instructed to implement the in-principle agreements. The notification must also state that, if the Mullewa Wadjari applicant is not instructed to implement the in-principle agreements, the Nanda and Wajarri Yamatji applicants will be able to apply for compensation for the time and resources they have spent in reliance on the conduct of the Mullewa Wadjari applicant. A copy and summary of the reasons in Papertalk and a copy of the present orders are to be included with the notification. Simultaneously, the Mullewa Wadjari applicant is to publish the summary of Papertalk on “relevant websites and social media sites”, and ask the Yamatji Marlpa Aboriginal Corporation – the representative native title body for the Mullewa Wadjari claim area – to post the summary on its website. The Nanda and Wajarri Yamatji applicants submitted that such notification is required to ensure that the Mullewa Wadjari claim group is informed (directly) about the Court’s reasons and, particularly, about the prospect of costs being awarded against the Mullewa Wadjari applicant, to the extent that the Court’s summary of Papertalk did not advert to that issue.

8    All members of the Mullewa Wadjari applicant are to attend the meeting, and the applicant must also invite representatives of YMAC and the State of Western Australia. The Nanda and Wajarri Yamatji applicants submitted that an order mandating the applicant’s attendance is appropriate given the gravity of the occasion and the Court’s finding that a majority of the members of the Mullewa Wadjari applicant had not participated in the key events surrounding the present dispute: see Papertalk at [234]. The Nanda and Wajarri Yamatji applicants also submitted that the YMAC and State representatives could make statements and field questions that could assist in fully informing the decision of the members of the Mullewa Wadjari claim group.

9    The meeting is to be facilitated by an independent person agreed between the native title applicants and the State approximately two weeks before the meeting is held. The Nanda and Wajarri Yamatji applicants submitted that this offers ample time for the facilitator to prepare for the meeting and for the necessary financial and logistical arrangements to be made. In the absence of agreement, the Nanda and Wajarri Yamatji applicants submitted that the parties could apply to the Court for a determination of an appropriate facilitator.

10    Soon after the conclusion of the meeting, the Mullewa Wadjari applicant must file a report signed by all its members detailing the conduct and outcomes of the meeting, including whether the claim group is prepared to honour the in-principle agreements, the list of persons who attended the meeting, and any resolutions voted on at the meeting (specifying whether the resolutions were carried). The parties are to return to the Court for case management following the filing of the report.

11    If the Mullewa Wadjari claim group decides not to honour the in-principle agreements, the Mullewa Wadjari applicant should pay the costs that were incurred by the Nanda and Wajarri Yamatji applicants for things done in reliance on the actions of the Mullewa Wadjari applicant but frustrated by the Mullewa Wadjari applicant’s failure to honour the in-principle agreements. The amount of costs is to be fixed as a lump sum, either agreed between the relevant parties, or determined by a Registrar of the Court on consideration of a costs summary and costs response as contemplated by paragraphs 4.10 to 4.14 of the Court’s Costs Practice Note dated 25 October 2016. The Nanda and Wajarri Yamatji applicants submitted that lump sum costs orders in these terms would be appropriate because the Court has found that the members of the Mullewa Wadjari applicant have abused the processes of the Court to the detriment of the Nanda and the Wajarri Yamatji, and that the existence of such orders would ensure that the Mullewa Wadjari claim group is aware of the consequences of not implementing the in-principle agreements and the Court’s disapproval of the Mullewa Wadjari applicant’s conduct.

12    If the Mullewa Wadjari applicant fails to convene the meeting by the deadline specified in the orders, the Mullewa Wadjari claim is to be dismissed pursuant to r 5.21 of the Federal Court Rules 2011 (Cth). The Nanda and Wajarri Yamatji applicants submitted that a self-executing order in these terms would be appropriate because of the significance of the decision to be made at the proposed meeting, and because the present controversy was at least partially caused by the Mullewa Wadjari applicant’s numerous delays in conducting claim group meetings. They submitted that, if there is a compelling reason for not holding the meeting by the deadline, the Mullewa Wadjari applicant could apply to have the order varied, or seek leave to reinstate the proceeding after the order takes effect.

The State’s position

13    The State agreed with the proposals and submissions of the Nanda and Wajarri Yamatji applicants, save for that the State took no position on the question of costs.

The Mullewa Wadjari applicant’s position

14    The Mullewa Wadjari applicant proposed that the Court should make no order other than an order dismissing the show cause motion.

15    On the subject of a further claim group meeting, the Mullewa Wadjari applicant submitted that the Court made no finding in Papertalk that the Mullewa Wadjari claim group meeting of 9 June 2021 was vitiated on legal grounds. Rather, in the Mullewa Wadjari applicant’s submission, the Court found that dismissal of the Mullewa Wadjari claim over the overlap areas is likely never to have been an outcome that at least those individuals purporting to represent the Mullewa Wadjari applicant and claim group were prepared to encourage the wider claim group to endorse: citing Papertalk at [225].

16    Furthermore, and presumably on the alternative proposal that a further Mullewa Wadjari claim group meeting were to proceed, the Mullewa Wadjari applicant contended that YMAC would be obliged to financially support the organisation of the meeting (as the Court suggested in Papertalk at [235]), but the Nanda and Wajarri Yamatji applicants’ proposed orders do not reflect this. The Mullewa Wadjari applicant also submitted that it is “not justifiable” to require the parties to agree on the identity of the facilitator of a further Mullewa Wadjari claim group meeting. Otherwise, the Mullewa Wadjari applicant indicated that it would not object to the terms of the other orders regarding the conduct of the claim group meeting, if the Mullewa Wadjari applicant were to agree that the meeting was required.

17    On the subject of costs, the Mullewa Wadjari applicant submitted that the purpose of a costs order against a party is not to penalise that party for their unreasonable conduct, but to compensate the other party for so much of their costs that such conduct has caused to be thrown away: citing Latoudis v Casey [1990] HCA 59; 170 CLR 534 at [13]. The Mullewa Wadjari applicant submitted that the Nanda and Wajarri Yamatji applicants’ proposed costs orders are coercive in that they impose a penalty on deciding not to adopt the terms of the in-principle agreements.

18    Further, the Mullewa Wadjari applicant submitted that s 85A of the Native Title Act 1993 (Cth) governs the determination of costs in these proceedings. That section provides:

85A    Costs

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)    Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.

19    In the Mullewa Wadjari applicant’s submission, the only relevant ‘proceeding’ for the question of costs and the purpose of s 85A(1) was the show cause hearing required on the Court’s own motion. The Mullewa Wadjari applicant submitted that the power in s 85A(2) does not extend to ordering compensation for costs incurred or thrown away in other proceedings to which the party against whom costs are sought is not a party. I infer this is a reference to the Nanda and Wajarri Yamatji proceedings.

20    Ultimately, the Mullewa Wadjari applicant submitted that the appropriate approach is for the matter of costs to be deferred until such time as the costs caused to be thrown away by the conduct of the Mullewa Wadjari applicant that has been found to be unjustifiably oppressive can reasonably be ascertained and quantified and the persons to be bound by such order can be identified. The Mullewa Wadjari applicant also indicated that the parties should be given an opportunity to re-agitate the matter of costs at “an appropriate time”.

Resolution

21    I do not accept the primary submission of the Mullewa Wadjari applicant that the only order which should be made is that the show cause proceeding should be dismissed. There is nothing to dismiss. The show cause hearing was a process of the Court’s own motion. It was a process undertaken in all six proceedings affected by the overlapping claims of the Nanda, Wajarri Yamatji and Mullewa Wadjari Peoples, namely WAD21/2019; WAD23/2019; WAD32/2018; WAD611/2018; WAD30/2019 and WAD 176/2019, on the basis that all those claims have been dealt with together, and have been subject to the Court’s mediation processes together, in respect of the overlaps. To confirm this, the orders made on 5 July 2021 to institute the show cause procedure included an order pursuant to s 67(1) of the Native Title Act and r 30.11 of the Rules that all six proceedings be dealt with together. In substance that had in any event been the effect of Barker J’s orders on 15 December 2017 referring all the proceedings concerning the overlap to mediation. If, contrary to the Court’s actual conclusions, an order reflecting a rejection of all the contentions put on behalf of the Nanda and Wajarri Yamatji applicants at the show cause hearing were otherwise appropriate, then the correct form of order would simply be an order that the overlapping claims proceed to hearing.

22    More substantively, the primary submission put on behalf of the Mullewa Wadjari applicant simply sets its face against the substantive reasoning of the Court in Papertalk, and the finding that the conduct of the Mullewa Wadjari applicant was an abuse of the processes of the Court, particularly the Court’s mediation processes: see Papertalk at [8].

23    It should have been obvious to those advising the Mullewa Wadjari applicant their primary submission as to appropriate relief would not be consistent with the findings of the Court about abuse of process. Yet the legal representatives elected to make such a submission, which seeks to ignore the key adverse finding made by the Court.

24    I consider it is appropriate to make orders broadly of the kind proposed by the Nanda and Wajarri Yamatji applicants, which in turn broadly follow at least some of the preliminary views I expressed in Papertalk at [230]-[239]. I have taken into account the submissions of the Mullewa Wadjari applicant about the specific orders proposed, and in some cases I have modified the orders to accept some of the points made.

25    The power of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth) to grant relief appropriate to the circumstances of a particular case is a wide one: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [109]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 at [102]; CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80]; Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. See also AWB Ltd v Cole (No 4) [2006] FCA 1050 at [7], where Young J held:

This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 (Patrick), at 32–33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61–62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 217–218 [10]–[12] and [15] per Gleeson CJ, at 231–232 [60] per Gaudron J, and at 241 [91] and 242–243 [93]–[94] per Gummow and Hayne JJ.

26    And, referring to Young J’s statement, see Akiba obh of the Torres Strait Regional Sea Claim v State of Queensland [2018] FCA 772; 263 FCR 409 at [190] and Gomeroi People v Attorney-General of New South Wales [2016] FCAFC 75; 241 FCR 301 at [97].

27    The orders to be made are also in my opinion supported by r 1.31 and r 1.32 of the Rules.

28    Particularly where the orders need to reflect the Court’s findings on an abuse of the processes of the Court, the relief which is appropriate is likely to be highly fact specific. That is the case here. The Mullewa Wadjari applicant abused the Court’s mediation processes, by representing to the Nanda and Wajarri Yamatji applicants, and to the Court (both directly and through its Registrar) that it was prepared to agree to a negotiated outcome of the overlap claims involving specific terms it appeared to accept, when that was not the case. By its evidence and contrary to its submissions, the Mullewa Wadjari applicant did not satisfy the Court that this was a position taken because of a genuine belief about rights to country held or endorsed by the Mullewa Wadjari native title claim group as a whole, rather than (as the evidence suggested) the view of a small number of individuals within the claim group, who in their more than three-year negotiation with the Nanda and Wajarri Yamatji, were not honest and transparent about their position until they announced a changed position in June 2021.

29    As the Court found in Papertalk at [9], the question of appropriate relief in these circumstances is difficult, but the relief must be informed by the Court’s finding that it was not satisfied that:

this changed position adopted by the Mullewa Wadjari applicant is first, a position reflecting the views of all or most members of the applicant, and second, a position reflecting the fully informed decision making of the wider Mullewa Wadjari claim group.

30    See also Papertalk at [227]-[228].

31    Given these findings, as the Court explained in Papertalk at [226], a dismissal of the claim would not do justice between the parties:

I do not consider dismissal of the Mullewa Wadjari application insofar as it overlaps with the Nanda and Wajarri Yamatji applications would be an order which would do justice between the parties, even given the abuse of process by the Mullewa Wadjari applicant. That is to inflict on a wider group of Mullewa Wadjari claim group, and their descendants throughout generations, a consequence for actions they were neither involved in, nor sanctioned. It would also involve the Court imposing an outcome about who are the native title holders for the area, against the asserted position of at least some prominent members of the Mullewa Wadjari claim group who now allege they hold native title in those overlap areas. The same reasoning means that no remedy such as a stay would be appropriate.

32    For relief properly to address the abuse of process by the Mullewa Wadjari applicant as it has been found to exist, the Court must be informed of the position of the Mullewa Wadjari native title claim group as a whole: being fully informed of all the circumstances, do they intend to honour the in-principle agreement made with the Nanda and Wajarri Yamatji, or do they intend not to do so? If they intend to honour the agreement, then this outcome is capable of ameliorating or mitigating the previous abuse of process by delivering the outcome which was represented as both desired and acceptable to the Mullewa Wadjari. The Nanda and Wajarri Yamatji applicants’ position accepts this to be the case, because they do not seek any costs orders in this situation.

33    If, having been fully informed of all the circumstances, the Mullewa Wadjari claim group as a whole decides not to honour the agreement, then two consequences follow. First, the abuse of process is not ameliorated or mitigated, and three and a half years of good faith work, expenditure of resources and change of legal position by the Nanda and Wajarri Yamatji parties in reliance on the position advanced by the Mullewa Wadjari applicant to them (and to the Court) will be thrown away. Second, the overlap claims will need to go to trial. The first consequence gives rise to the question of whether there should be compensation by way of costs to the Nanda and Wajarri Yamatji applicants for the work done in the mediation process, but thrown away because of the abuse of process.

Substantive orders

34    For the reasons at [28]-[33] above, having considered the parties’ submissions and reflected on the matter, I find that it is appropriate for the Court to require the Mullewa Wadjari applicant to hold a meeting of the Mullewa Wadjari claim group, to inform that claim group as a whole about the choice which needs to be made, and the circumstances which have led to that choice, including the Court’s findings.

35    Given the Court’s findings about abuse of process, I consider it is appropriate that if the Mullewa Wadjari applicant decides not to comply with the Court’s orders, and does not arrange a claim group meeting as it has been ordered to do, then there should be a self-executing order dismissing the Mullewa Wadjari claim. By the orders made today, the Court has given the Mullewa Wadjari applicant the opportunity to clarify the position of the claim group it represents, one way or the other. Neither the Mullewa Wadjari applicant nor the claim group are being compelled to implement the in-principle agreements. Rather, they are being compelled to clarify the position of the Mullewa Wadjari claim group as a whole, in circumstances where the Court can be satisfied claim group members have been fully and properly informed of what has occurred since January 2018, and of the Court’s findings, and that all members of the Mullewa Wadjari applicant have participated in the decision making and through that active participation have fulfilled their responsibilities as members of a native title claim applicant.

36    The conduct of the Mullewa Wadjari applicant in the past is what has made a coercive order of this kind necessary and appropriate. If the Mullewa Wadjari applicant consciously elects to disobey the orders of the Court, then the Court can be satisfied it is doing so understanding that its disobedience will result in the dismissal of the Mullewa Wadjari claim, and it will need to answer to its claim group for that outcome. If there is such disobedience, then the Nanda and Wajarri Yamatji applicants, and their respective claim groups, should not be put to any further expenditure of time and resources, nor any further distress and anxiety about the non-implementation of agreements they were led to believe would be honoured, and they should be able to finalise their claims to the overlap areas free of the Mullewa Wadjari claim. While this is a result which has an impact on all the Mullewa Wadjari claimant group, in this particular situation, it will only come about because of the deliberate disobedience of the Mullewa Wadjari applicant to a court order, being a court order designed to allow the Mullewa Wadjari group as a whole to make an informed choice about whether or not to honour the in-principle agreements. In those circumstances, the Mullewa Wadjari applicant would have, by its own disobedience to a court order, brought about the dismissal of the Mullewa Wadjari overlapping claim. The interests of the administration of justice, including the interests of ensuring that parties comply with orders of the Court even if they do not agree with them, supports this outcome. Thus, the self-executing order provides for what is necessary to serve the interests of the administration of justice in these particular circumstances.

37    Disobedience to, or non-compliance with, a court order is one of the express circumstances contemplated by r 5.21 as sufficient to justify dismissal of a proceeding. Rule 5.21 provides:

5.21    Self‑executing orders

A party may apply to the Court for an order that, unless another party does an act or thing within a certain time:

(a)    the proceeding be dismissed; or

(b)    the applicant’s statement of claim, or alternative accompanying document referred to in rule 8.05, be struck out; or

(c)    a pleading of the respondent be struck out; or

(d)    the party have judgment against the other party.

38    The Nanda and Wajarri Yamatji applicants have applied for an order of this kind. In any event, the Court could make such an order of its own motion, if satisfied it was appropriate to do so: see r 1.40.

39    The orders relating to publication of material about the circumstances leading to the need for this claim group meeting are designed to ensure ready access by all claim group members to relevant information, and to ensure the publication of the reasons why this meeting is important, and necessary. Given the abuse of process findings, it is appropriate that the responsibility for taking these steps falls on the Mullewa Wadjari applicant, and this is also consistent with its role as a representative of the claim group under the Native Title Act.

40    The Mullewa Wadjari applicant submits it is not appropriate to compel all members of the applicant to attend the claim group meeting. I disagree. The evidence before the Court reveals a concerning lack of participation by a majority of members of the Mullewa Wadjari applicant in the processes which led to the abuse of process. Instead, a much smaller number of individuals appeared to drive those processes. There was no evidence about consultation with the wider applicant group, or endorsement of what the particular individuals were doing, and representing to the Court and to the other native title applicants. The Native Title Act imposes certain responsibilities on members of a native title applicant. It expressly provides for those individuals to act “jointly”. If individuals are unwilling or unable to discharge those responsibilities, then the Act makes provision for them to be removed as members of an applicant: see Native Title Act s 66B. The circumstances of individuals may well change, and it is no criticism, or shame, for people to withdraw as members of a native title applicant if they can no longer bear the responsibilities which accompany that role. However, if individuals remain in this role, they must be ready and willing to perform the duties which accompany it. Attendance at a meeting such as the one for which the Court’s orders provide is a core aspect of this responsibility because the meeting concerns whether or not to honour in-principle agreements reached with neighbours, where those agreements fundamentally affect the Mullewa Wadjari claimant application. It is necessary and appropriate each member of the Mullewa Wadjari applicant attends that meeting. On the evidence, the Court cannot be confident they will do so without an order being made. The Mullewa Wadjari applicant has adduced no evidence to satisfy the Court otherwise, nor has it even expressly stated in its submissions that each member of the Mullewa Wadjari applicant will attend, which may well have been sufficient to persuade the Court. Nor in its submissions does it acknowledge the role of each individual member of a native title claimant applicant.

41    One point made by the Mullewa Wadjari applicant that should be accepted on this issue is that there may well be exigencies (or “cause” as the Mullewa Wadjari applicant puts it) which prevent an individual member of the applicant from attending the claim group meeting, even if they had intended, and wished, to attend. I accept provision should be made for that possibility. However, I consider given the history of the overlap dispute, the Court should be satisfied, on a formal application and proper evidence, that such an exigency exists. Therefore, the orders will permit an interlocutory application to be made for variation of the order compelling attendance, so as to excuse an individual, if the Court is satisfied on the evidence it is appropriate that the individual be excused. It is regrettable that the Court should need to concern itself at this level with the conduct of a native title applicant, but the history of the overlap dispute to this point means the Court should closely supervise the next steps. An order of this nature is also necessary to make the other orders of the Court effective and to fulfil the overall purposes of the orders. It is also necessary to protect the interests of the Nanda and Wajarri Yamatji applicants, as the wronged parties, in securing a substantive outcome – one way or the other – to the overlap claims which they can be satisfied truly represents the views of the Mullewa Wadjari claim group, with the full participation of the members of the Mullewa Wadjari applicant.

42    Given the history of the matter, it is appropriate that YMAC, as the representative body for the region, is involved in the meeting, if it wishes to be. It may wish to assist claim group members, or the Mullewa Wadjari applicant. It may wish to present its own views on the circumstances to the Mullewa Wadjari claim group. The Court’s orders do not require YMAC to do anything, but do require the Mullewa Wadjari applicant to invite it to attend. A formal invitation should assist in assuring claim group members that it is appropriate for YMAC officers to be at the meeting, and to participate if they choose to do so. YMAC is also not required to post any material on its website, but again, the Mullewa Wadjari applicant must invite it to do so. That is part of the responsibilities of the Mullewa Wadjari applicant in ensuring it has taken all reasonable steps to inform claim group members about the meeting, why it is required, and the circumstances which have led to it.

43    The Mullewa Wadjari applicant does not object to the claim group meeting being facilitated by an independent person, but does object to orders requiring that person to be someone agreed between the parties. Its submissions do not develop the basis for that objection, but rather simply assert it is “not justifiable”. I disagree. Once again, it is the conduct of the Mullewa Wadjari applicant since January 2018 which justifies an order of this kind. As the reasons in Papertalk describe, the Mullewa Wadjari applicant misled the other parties and the Court on more than one occasion, whether directly or indirectly through what the Court inferred it had instructed its lawyers to represent. Sometimes the misleading was by omission, sometimes it was express. The Court is not confident the Mullewa Wadjari applicant itself will select an independent facilitator. Although the Court has not made any express findings against the legal representatives of the Mullewa Wadjari applicant, the Court does not have confidence in those legal representatives being able to assist the Mullewa Wadjari applicant in selecting a facilitator for the meeting who is truly independent. The Mullewa Wadjari applicant’s legal representatives are, in the Court’s opinion, too close and too bound up in this sequence of events. Further, that task may in any event place those legal representatives in something of a conflict of interest, their duties being to advance their client’s interests. They will be able to perform that role in participating in an agreed selection of a facilitator with the other active parties to the six proceedings. The State, the Nanda applicant and the Wajarri Yamatji applicant all have an interest in the claim group meeting being conducted independently and transparently. The effectiveness of the Court’s orders also depends on that occurring. Requiring an agreed facilitator may involve some compromises, but it should result in the selection of a person who will be independent of the interests of any particular party to these proceedings.

44    There is an obvious need for a report back to the Court about the outcomes of the meeting. For that report to assist the Court in determining next steps, it must contain a sufficient level of detail about who attended the meeting, what was discussed and what the outcomes were. The orders are designed to ensure that level of detail.

45    The remaining matters should be dealt with separately.

YMAC’s alleged obligations

46    I reject the submission of the Mullewa Wadjari applicant that YMAC should be ordered to fund the claim group meeting. At [9] of its written submissions, the Mullewa Wadjari applicant contends that the Court “recognised” YMAC was “obliged to support financially the steps required for the convening of the meeting”. The reference given is to Papertalk at [235], which states:

It seems likely to be the case that YMAC will need to provide funds for the conduct of the meeting, and the Court should hear YMAC’s position on providing such funding, and how if at all the funds might be kept to an absolute minimum.

47    That is far from a definitive finding, or recognition. It was no more than a general statement, and in any event part of the Court’s preliminary views. It expressly contemplates that YMAC should be heard. YMAC has not sought to be heard.

48    The legal representatives of the Mullewa Wadjari applicant have not accurately represented the finding of the Court. In any event, their submission should not be accepted.

49    It is a matter for YMAC to decide whether it is appropriate to fund the claim group meeting in the particular circumstances. YMAC is, I infer, well aware of its responsibilities as a representative body. YMAC may well decide such funding is appropriate in the interests of the wider Mullewa Wadjari claim group. It may place conditions or limits on that funding. It may be aware of other sources of income available to the Mullewa Wadjari claim group of which the Court is not aware. It may consider the members of the Mullewa Wadjari applicant should fund the meeting themselves. It may consider this is a straightforward situation requiring funding. These are all no more than possibilities, and are matters for YMAC.

Costs

50    Section 85A(2) of the Native Title Act, read with s 44 of the Federal Court Act, governs the exercise of the costs discretion.

51    It is well established that the power to award costs has a compensatory purpose. That the purpose of a costs order is compensatory is made express by the terms of s 85A(2), which has as its premise that costs were incurred unnecessarily or more extensively than was reasonably necessary.

52    The Mullewa Wadjari applicant contends “the proceeding” for the purposes of s 85A is the show cause hearing. I have dealt with that submission at [21] above, and rejected it. The relevant “proceeding” for the purposes of s 85A are the six proceedings in which the overlapping claims of native title arise. Section 4 of the Federal Court Act defines proceeding thus:

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal.

Example: Discovery is an example of an incidental proceeding.

53    It is those six proceedings, being proceedings in this Court, which were the subject of orders for mediation, and which have been dealt with together insofar as each proceeding involved an area of land and waters that overlapped with an area claimed in one of the other proceedings. It was within each of those six proceedings so described that the Mullewa Wadjari applicant’s conduct was an abuse of process. The Mullewa Wadjari claim overlapped all of the five other claims. The costs were incurred by the respective parties in all of those proceedings, insofar as the costs related to the mediation and negotiations around resolving the overlapping claims. There is no legal difficulty in an order for costs being made under s 85A(2), read with s 44 of the Federal Court Act in some or all of those proceedings, if the Court considers an order is appropriate.

54    However, I consider a self-executing order of the kind proposed by the Nanda and Wajarri Yamatji applicants is premature. I note the State does not seek any costs orders, so it adopts no position on this question. A costs order is premature because the conduct of the Mullewa Wadjari applicant in relation to the claim group meeting, and the group-wide decision making involved in it, as well as its future compliance with the Court’s orders, may all be relevant factors to the exercise of the costs discretion. It would in any event be necessary to give the individual members of the Mullewa Wadjari applicant an opportunity to be heard before any costs order is made, including an opportunity to adduce evidence. That is especially so where it seems likely any costs order might be made against individual members of the Mullewa Wadjari applicant, although on the evidence presently before the Court a majority of members of the Mullewa Wadjari applicant may not have been directly involved in most of the steps which the Court has found to be an abuse of process. Therefore, the only orders which will be made will be orders which allow for a future process about costs thrown away, if the in-principle agreements are not to be honoured.

55    Finally, the fact that the question of costs arises only in the scenario that the Mullewa Wadjari claim group decides not to honour the in-principle agreements does not suggest any punitive or coercive purpose behind the Court’s consideration of an application for costs, contrary to the submissions of the Mullewa Wadjari applicant. That is because it is only where the agreements are not honoured that the past costs incurred will be thrown away. If the in-principle agreements are to be honoured, then all the drafting and negotiations will have been applied towards an outcome which will be realised. If the in-principle agreements are not to be honoured, then there must be a trial of all the overlapping claims, and the past abuse of the mediation processes by the Mullewa Wadjari applicant is capable of being an unreasonable act or omission within the terms of s 85A(2) of the Native Title Act, being acts and omissions which have caused the Nanda and Wajarri Yamatji applicants to incur costs they would not otherwise have incurred. I say “capable” because these are matters for the Court to decide, if and when the occasion for a costs application crystallises, as I have explained.

Associate:

Dated:    20 May 2022