Malone on behalf of the Western Kangoulu People v State of Queensland

• Jurisdiction: Australia Federal only
• Judgment Date: 01 October 2021
• Neutral Citation: [2021] FCAFC 176
• Date: 01 October 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Malone on behalf of the Western Kangoulu People v State of Queensland [2021] FCAFC 176

Appeal from:	Application for leave to appeal:
File number:	QUD 278 of 2020
Judgment of:	RANGIAH, WHITE AND STEWART JJ
Date of judgment:	1 October 2021
Catchwords:	NATIVE TITLE – application for leave to appeal against interlocutory judgment rejecting an application to strike out the State’s Response to the Statement of Facts and Matters which the Applicants sought to have admitted – whether the judgment attended by sufficient doubt to warrant the attention of the Full Court – whether, assuming the judgment to be wrong, the Applicants would suffer substantial injustice by a refusal of leave – application for leave to appeal dismissed by the majority – minority would grant leave but dismiss the appeal.
Legislation:	Evidence Act 1995 (Cth) s 140 Federal Court of Australia Act 1976 (Cth) ss 37M-37P, Pt VB Native Title Act 1993 (Cth) ss 13, 50, 51, 61, 61A, 81, 82, 84, 85A, 86B, 87, 87A, 94E, 223 and 225 Federal Court Rules 2011 (Cth) rr 16.07, 22, 23.11‑23.13. 28.67
Cases cited:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1621 Brodie v Singleton Shire Council (2001) 206 CLR 512 Brownley v Western Australia (1999) 95 FCR 152 Charles v Sheffield Resources Ltd (2017) 257 FCR 29 Complete Technology Pty Limited v Toshiba (Australia) Pty Limited (1994) 53 FCR 125 Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1; (2020) 276 FCR 477 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46; (2013) 250 CLR 303 King on behalf of the Eringa Native Title Claim Group v State of South Australia [2011] FCA 1386; (2011) 285 ALR 454 Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 Munn for and on behalf of the Gungarri People v State of Queensland [2001] FCA 1229; (2001) 115 FCR 109 North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 Oil Basins Limited v Watson [2014] FCAFC 154 Rainbow on behalf of the Kurtijar People v State of Queensland [2019] FCA 1683 Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494 Starkey on behalf of the Kokatha People v State of South Australia [2018] FCAFC 36; (2018) 261 FCR 183 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 UBS AG v Tyne as Trustee of the Argot Trust [2018] HCA 45; (2018) 265 CLR 77 Western Australia v Fazeldean (No 2) [2013] FCAFC 58; (2013) 211 FCR 150 Western Australia v Ward (2000) 99 FCR 316 Western Bundjalung People v Attorney General of New South Wales [2017] FCA 992 Widjabul Wia‑Bal v Attorney‑General of NSW [2020] FCAFC 34; (2020) 274 FCR 577
Division:
Registry:
National Practice Area:
Number of paragraphs:	243
Date of hearing:	24 May 2021
Counsel for the Applicant:	Mr V Hughston SC with Mr C Athanasiou
Solicitor for the Applicant:	P&E Law
Counsel for the Respondent:	Mr A Duffy QC with Ms J Brien
Solicitor for the Respondent:	Crown Law

ORDERS

		QUD 278 of 2020
BETWEEN:	JONATHON MALONE, HEDLEY HENNINGSEN, KAREN BROOME AND CYNTHIA BROOME ON BEHALF OF THE WESTERN KANGOULU PEOPLE Applicant
AND:	STATE OF QUEENSLAND Respondent

DATE OF ORDER: 1 October 2021

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.

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

REASONS FOR JUDGMENT

RANGIAH J:

1. The applicant seeks leave to appeal from the interlocutory judgment of O’Bryan J in Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188.

2. The principal proceeding is an application on behalf of the Western Kangoulu People for a determination of native title (the Western Kangoulu determination application). The applicant made an interlocutory application seeking the striking out of a document containing the defence of the State of Queensland (the State). The interlocutory application was dismissed by the primary judge.

3. The substance of the appeal may be briefly summarised. Orders have been made for the hearing of separate questions concerning the existence of native title over the claim area. After participating in conferences of experts ordered by the Court, the anthropologist retained by the applicant and the anthropologist retained by the State produced two joint experts’ reports (the Experts’ Joint Reports). The experts have jointly expressed opinions to the effect that the Western Kangoulu People hold native title rights and interests in the claim area. However, the State does not accept the experts’ conclusions, is not satisfied that there is a credible basis for the claim, and is not willing, at this stage, to negotiate a consent determination.

4. The applicant contends that the primary judge erred in failing to find that the State’s conduct is in breach of its obligations under the Native Title Act 1993 (Cth) (the NT Act) to negotiate in good faith and under Pt VB of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to conduct the proceeding as quickly, inexpensively and efficiently as possible. The applicant also alleges that the State’s conduct is an abuse of the process of the Court. The applicant seeks an order striking out what is effectively the State’s defence, so that the Western Kangoulu determination application can proceed unopposed.

5. In my opinion, the proposed appeal raises issues of general importance and has sufficient merit to warrant the grant of leave to appeal. However, for the reasons that follow, I consider the appeal should ultimately be dismissed.

Procedural history

6. The primary judge set out a comprehensive description of the procedural history of the Western Kangoulu determination application. The following summary is largely taken from his Honour’s reasons.

7. The Western Kangoulu determination application was originally filed on 9 May 2013. The most recent form of the application was filed on 10 January 2019. The native title claim group is defined in Schedule A to the application as follows:

The group of persons claiming to hold the common or group rights comprising the native title is the Western Kangoulu People.

A person is a Western Kangoulu person if and only if the other Western Kangoulu People recognise that he or she is biologically descended from a person who they recognise as a Western Kangoulu ancestor, including the following deceased persons:

• Polly aka...