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Malone on behalf of the Western Kangoulu People v State of Queensland [ 2020] FCA 1188  (19 August 2020)

Last Updated: 19 August 2020

FEDERAL COURT OF AUSTRALIA

Malone on behalf of the Western Kangoulu People v State of Queensland  [2020] FCA 1188 

ORDERS

THE COURT ORDERS THAT:

1. The Applicant’s interlocutory application filed on 22 May 2020 be dismissed.
2. The parties are to confer about further steps to be taken in the proceeding to facilitate conciliation of the claim and, within 28 days of the date of this order, file agreed orders or, if agreement cannot be reached, competing orders together with a submission of no more than 3 pages.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. By interlocutory application filed on 22 May 2020, the applicant seeks an order from the Court striking out the response filed by the first respondent, the State of Queensland (the State), to the statement of facts and matters filed by the applicant. The application is supported by an affidavit of David John Knobel, the solicitor for the applicant, affirmed 22 May 2020.
2. The interlocutory application brings to a head a significant procedural dispute between the applicant and the State about the future conduct of this proceeding, and particularly about the State’s role in the proceeding. Orders have been made for the hearing of separate questions concerning the existence of native title over the claim area, excluding issues of extinguishment (Separate Questions). The dispute has arisen following conclaves of expert anthropologists retained by the applicant in this proceeding, by applicants in other associated native title proceedings, and by the State in each of those proceedings. The conclaves were held on 21 and 22 February 2019 and resulted in two joint expert reports directed to the Separate Questions. In those joint reports, agreement was expressed by, relevantly, the experts appointed by the applicant and by the State that the applicant holds native title in the claim area the subject of this proceeding. Notwithstanding that agreement, the State has informed the applicant that: it does not accept the conclusions expressed by the experts in the joint reports; it is not satisfied that there is a credible basis for the native title application; and, therefore, it is unwilling to negotiate a consent determination under s 87 of the Native Title Act 1993 (Cth) (NT Act).
3. The applicant contends that the position adopted by the State is improper. It relies on a range of related but distinct legal principles and associated powers of the Court: obligations arising specifically under the NT Act to negotiate in good faith; the overarching purpose of civil litigation stated in Part VB of the Federal Court of Australia Act 1996 (Cth) (FCA Act); the prevention of an abuse of process; and the State’s model litigant’s obligations.
4. The applicant accepts that the Court does not have power to compel the State to agree to a consent determination under s 87 of the NT Act. It also accepts that striking out the State’s response to its statement of facts and matters cannot result in an application for summary judgment, as the Court cannot make a determination of native title unless satisfied of the requirements under ss 223 and 225 of the NT Act. It contends, though, that if the Court is satisfied that the State has breached the duties and obligations referred to above, the Court can strike out the State’s response to the applicant’s statement of facts and matters and remove the State as an active party in the determination of the Separate Questions.
5. For the reasons explained below, I am not satisfied that the position adopted by the State is inconsistent with any duty or obligation owed by it in this proceeding to the applicant or the Court. I will therefore dismiss the application. Despite the dismissal of the application, the position adopted by the State has implications for the further conduct of this proceeding. Having been given the opportunity to adduce evidence in the form of an expert anthropologist’s report, the Court would not permit the State to adduce further evidence and the State does not seek such an opportunity. The Court will require the parties to confer about further steps to be taken in the proceeding to facilitate conciliation of the claim so as to maximise the prospect that the application is resolved by agreement. If ultimately agreement on the claim cannot be achieved, the Court will facilitate an early hearing of the Separate Questions. As matters presently stand, the only evidence that will be adduced at that hearing is evidence on behalf of the applicant. The State will be entitled to cross-examine witnesses and make submissions in the hearing, subject to the Court’s usual powers of supervision.

The Native Title Application and the Procedural History

The Application

6. The Western Kangoulu native title 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 Polly Brown aka Polly McAvoy;
• John 'Jack' Bradley;
• Hanny of Emerald;
• Naimie, mother of Nelly Roberts; and
• Annie/Naimy Duggan and Ned Duggan.

7. In describing the association of the Western Kangoulu people with the claim area, the application states (in part):
   5. At the time the crown acquired legal sovereignty over the Application Area, there was a body of Aboriginal people who were associated with the land and waters of the Application Area.
   6. The Aboriginal people who were associated with the land and waters of the Application Area were part of a broader regional society, but were a localised constituent part of this society confining their primary territorial interests to the lands and waters of the Application Area. The contemporary members of the claim group have adopted the name “Western Kangoulu” to explicitly distinguish their localised interests from those of their regional neighbours to whom they have close social and cultural ties dating from the pre-sovereignty period.
   7. The areas surrounding Western Kangoulu country belonged to groups who have or were identified as: the Jagalingu, Wangan, Karingbal, Kanolu, Wadja and Gangalu amongst others. Together these groups and the Western Kangoulu formed an interconnected cluster of distinct groups who interacted for cultural and social purposes, and shared common spiritual beliefs, religious institutions, social organisation and classificatory kinship systems, and common laws and customs. Together, these groups form what may be termed a regional society situated within the cultural bloc often referred to as the Maric cultural bloc by linguists and anthropologists so named for the common word for human (“Mari”) shared throughout much of this bloc.
8. The Western Kangoulu claim area identified in the application is not overlapped by any other native title claim and there are no indigenous respondent parties to the application. However, the Western Kangoulu claim area adjoins the boundary of one other native title claim area which in turn adjoins and was previously overlapped by other claims areas. Specifically:

(a) part of the eastern boundary of the Western Kangoulu claim area adjoins the western boundary of the claim area in proceeding QUD33/2019 (GNP claim);
(b) part of the southern boundary of the claim area of the GNP Claim adjoins the northern boundary of the claim area in proceeding QUD28/2019 (Wadja claim); and
(c) the claim area in proceeding QUD619/2017 (Part A) (Wulli 3A claim) formerly overlapped an eastern portion of the claim area of the GNP Claim.

9. The Western Kangoulu claim and the other three claims are collectively described as the “Ganggalu Cluster”.

Separate questions

10. On 6 December 2017, Justice Rangiah made orders under r 30.01 of the Federal Court Rules 2011 (Cth) that the following questions (the Separate Questions) be determined separately from any other questions in the proceeding:

(a) But for any question of extinguishment of native title, does native title exist in relation to any and, if so, what land and waters of the claim area?
(b) In relation to that part of the claim area where the answer to (a) above is in the affirmative:

(i) Who are the persons, or each group of persons, holding the common or group rights comprising the native title?
(ii) What is the nature and extent of the native title rights and interests?

11. Thus, issues of extinguishment and the nature and extent of other interests in the claim area (including questions arising under s 225(c), (d) and (e) of the NT Act) are to be determined after the determination of the Separate Questions.
12. At the same time, orders were made to progress the matter to a hearing of the Separate Questions including:

(a) orders requiring any respondent, other than the State, that wished to participate in the hearing to nominate themselves;
(b) orders requiring the service of pleadings in respect of the Separate Questions; and
(c) orders requiring the filing of lay and expert evidence for the purposes of the hearing.

13. An order was also made for the expert witnesses to attend a conference before a Registrar of the Court for the purpose of narrowing or removing any differences in their respective opinions, and for the experts to produce for the use of the parties and the Court a document(s) identifying with respect to matters and issues within their expertise:

(a) the matters and issues about which their opinions are in agreement;
(b) the matters and issues about which their opinions differ; and
(c) where their opinions differ, the reasons for their difference.

14. The Court also directed that the matter be referred generally to a Registrar of the Court to conduct one or more case management conferences, as may be necessary, to assist the parties as the Registrar sees fit.
15. Subsequent orders of the Court have been directed to procedural steps necessary for the hearing of the Separate Questions.
16. Whilst there are almost 100 respondent parties to the application, only the State is taking an active role in the hearing of the Separate Questions.
17. Similar orders were made in each of the other claims comprising the Ganggalu Cluster.

Pleadings and evidence

18. On 21 June 2018, the applicant filed a statement of claim in respect of the Separate Questions.
19. On 19 July 2018, the State filed a defence putting the applicant to proof on most matters (pleading that it did not know and did not admit those matters).
20. On 30 August 2018, the applicant filed 12 statements or affidavits of lay witnesses.
21. On 14 September 2018, the applicant filed an anthropological report of Dr Richard Martin and Dr Dee Gorring (Gorring/Martin Report) and a genealogical report of Dr Hilda Maclean.
22. On 9 November 2018, the State filed an anthropological report of Dr Anna Kenny (Kenny Report). The State did not file any lay evidence.

Preparation for the conference of experts

23. On 19 September 2018, the Court’s Senior Native Title Case Manager emailed the Ganggalu Cluster parties, advising that the Registrar proposed to hold a series of expert conferences which included the experts of more than one of the claims comprising the Ganggalu Cluster. None of the parties raised any objection to that proposal.
24. On 15 October 2018, the Court’s Senior Native Title Case Manager requested that the legal representatives for the Ganggalu Cluster parties involved in the hearing of the Separate Questions jointly confer with a view to providing draft lists of questions for the expert conferences, and associated lists of agreed basis materials, by 30 October 2018.
25. On 16 October 2018, Crown Law (on behalf of the State in each proceeding) emailed a common letter to each of the Ganggalu Cluster applicants’ legal representatives requesting permission for the State’s anthropological expert to have access to documents filed in each proceeding, and source documents referred to in them, and, where necessary, to refer to and comment upon that material in the other matters. The State was concerned that Dr Kenny, its nominated expert across all four proceedings in the Ganggalu Cluster, would take considerably longer to write a report if she was not permitted to refer generally to source materials or opinions across all four matters and that the filing of separate reports which referred only to material from a single proceeding would result “in fractured reporting” and not give the whole picture across the four matters.
26. The Ganggalu Cluster applicants opposed the request made by Crown Law. As a result, on 19 October 2018, the State filed interlocutory applications in each of the Ganggalu Cluster proceedings seeking relief from its Harman undertaking in each proceeding so that it could provide materials filed in each proceeding to Dr Kenny. On 29 October 2018, Robertson J granted that relief and ordered that the expert reports, their basis material and the lay evidence filed in the Ganggalu Cluster proceedings be available to each of the parties’ experts engaged in each proceeding: Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1621.
27. On 5 November 2018, Rangiah J revised the programming orders and deferred the date by which the conferences of experts were to be held to 1 March 2019.
28. Prior to the experts’ conference, the parties in the Ganggalu Cluster proceedings consulted about the issues to be addressed by the experts at the conference. The consultation was, to some extent, coordinated by the State. Relevantly, in this proceeding, a document titled “List of issues for consideration by the expert witnesses” was prepared (List of issues). The preamble to the document recited the order that had been made by Rangiah J on 5 November 2018 relating to conferral, set out above. The order required the experts to set out in their joint report the matters and issues about which they were are in agreement, the matters and issues about which their opinions differ and, where their opinions differ, the reasons for their difference. The order did not require the experts to set out the reasons for any opinion on which they were agreed. Nevertheless, the preamble to the List of issues went on to state:

If each of the experts are able to agree in relation to the answers to the questions asked below, the joint report should state the agreed answer to that question, and explain the reasons for that jointly held opinion and the evidence upon which it is based.
Where the experts are unable to agree in relation to the issues identified below, they should each explain the reasons for their respective opinions and the evidence upon which it is based as well as the reasons for not accepting the competing view(s). This can be done by reference to particulars paragraphs of reports already prepared.

29. The document then set out the issues to be addressed in the form of questions to be answered. Under each question, the document reiterated that the experts should include either:

(a) a joint statement of agreement and reasoning for that agreement; or
(b) individual statements of disagreement and reasoning for the disagreement.

Expert conferral

30. The conference of the experts occurred on 21 and 22 February 2019, convened by two Registrars of the Court.
31. The first conferral (on 21 February 2019) related to each individual proceeding within the Ganggalu Cluster. Relevantly, in respect of the Western Kangoulu claim, Dr Martin and Dr Kenny conferred and produced a joint report which was filed on 19 March 2019 (WK Joint Report). The report addressed each of the questions set out in the List of issues. However, where the experts agreed on the answer to a question, the report merely stated the proposition on which the experts agreed and did not state the reasoning for that agreement. I observe that the experts’ response was consistent with the order of the Court convening the conference but not with the preamble to the agreed “List of issues” which requested the experts to set out their reasoning for an agreed position. Attachment 1 to the report was a map of the claim area and Attachment 2 was a list of materials considered by the experts for the purposes of the conference (referred to as the “basis material”) which included all material filed in the Western Kangoulu proceeding. Each of Dr Martin and Dr Kenny signed a declaration stating that “in expressing the opinions attributed to me in this report [I] have had regard to the basis material and the statements made at the conference of experts and have made all the inquiries which I believe are desirable and appropriate and that no matters of significance which I regard as relevant have, to my knowledge, been withheld”.
32. The argument before me focussed on the content of the WK Joint Report. For that reason, it is necessary to make reference to key parts of the report, particularly to identify the nature of the opinions expressed. The following is an extract of various questions stated in the report which were taken from the “List of issues” (shown in italics below) and the answers given:

1(a) Were there Aboriginal people in occupation of the Western Kangoulu claim area, or discrete parts of the area, as at effective sovereignty who were united in and by their acknowledgment and observance of a body of laws and customs?
Yes, Aboriginal People were in occupation of the Western Kangoulu claim area.
1(b) If the answer to question l(a) is "yes", did those people constitute a society, or part of a larger or regional society, and what is the nature and extent of that society?
The Aboriginal people of the claim area were part of a broader society that included local landholding groups and extended beyond the area covered by the GNP cluster. It is our opinion that other members of this regional society included the Garingbal, Wadja and Gangalu as well as others.
From the limited ethnographic record, it appears that there were social networks that faded out in different areas depending on the location of the respective group.

2. If the answers to questions l(a) or l(b) were "yes", what were the traditional laws and customs of the identified society, including any traditional laws and customs pertaining to rights and interests in relation to land and waters (including the land and waters in the Western Kangoulu claim area) and the transmission of those rights and interests?

‘Traditional laws and customs pertaining to rights and Interests in relation to land and waters’ include the ‘transmission of rights and interests in land and waters’, it is therefore superfluous to address these components of the question separately.
Traditional laws and customs:
a. A classificatory kinship system.
b. A form of social organisation encompassing two named moieties and four named sections.
c. An understanding of mythology, including spiritual forces inhering in land and waters.
d. A system of inheritance of identity and generic and locality-specific rights in land through different genealogical links, including the inheritance of rights through male and female forebears as well as relations based on marriage and adoption.
e. An understanding of totemism, including an association between totemism and kinship as well as personal totems called yuris.
f. An understanding of spirits in the landscape, including appropriate ways of managing spiritual presence.
g. Male and female rituals, including initiation ceremonies.
h. Intermarriage and trade across the regional society and beyond.
i. Various funerary practices.
j. A system of authority emphasising the role of senior people.
k. An embodied relationship between people and their land and waters.
l. The inalienability of rights in land and water.
m. A variety of responsibilities to manage and protect the land and waters.
n. An understanding of sorcery and traditional healing.
o. Customary use of natural resources.
p. Recognition of gender specific and other sensitive significant sites at which certain access protocols apply.
3(a) Did any or all of the following people hold rights and interests in the Western Kangoulu claim area under the traditional laws and customs identified at question 2? If not all of the following persons in the list, identify the persons.
Apical ancestors identified on the Western Kangoulu Form 1
1. Poly aka Polly Brown aka Polly McAvoy
2. John 'Jack' Bradley
3. Hanny of Emerald
4. Nannie, mother of Nelly Roberts
5. Annie/Nanny Duggan and Ned Duggan
...

4. If the answer to question 3(a) is "yes", did they hold the rights and interests on a regional, communal, group or individual basis?

Land holding units at effective sovereignty were clans, whose members held rights and interests as a clan group at a local level. Clan members were recruited by a system with a patrilineal bias.
The local land owning clans formed clusters or aggregations at another level of identification which may have been a regional and/or linguistic identity.

5. Do the members of the Western Kangoulu claim group constitute a society, or part of a larger or regional society that is united in and by their acknowledgment and observance of traditional laws and customs, referred to in question 2?

The WK people are part of a broader or regional society.

6. Having regard to the way in which the claim group is defined in the Amended Claimant Application filed pursuant to orders made on 11 August 2017 (the claim group), and the available evidence, does the claim group (as a whole or in part) acknowledge and observe the traditional laws and customs identified in question 2. If in part, identify the part.

We respond to this question with the use of three categories to reflect different levels of acknowledgment and observance of laws and custom:
1. Observed;
2. No longer observed; or
3. Observed in attenuated form. By this we mean they have been reduced in force or effect while continuing to be observed.
For this purpose we refer to the list of laws and customs at Q2:

7. Have any of the traditional laws and customs identified in question 6 changed in their nature or content since effective sovereignty, and if so, what is the extent of such changes and are the changed laws and customs traditional?

Since effective sovereignty all laws and customs listed above have adapted, and some have ceased to be observed. Continuing laws and customs vary in the extent of change. However, our opinion is that all of the laws and customs identified as either observed or observed but attenuated at Q7 are rooted in tradition and have been transmitted from previous generations.

8. If the answer to question 6 and/or 7 is "yes", do members of the claim group continue to possess rights and interests in land and waters under those traditional laws and customs? If yes, do they possess them as a community (or society if they be the same thing in this case) or by a group or groups, or by one or more individuals?

Today the members of the claim group continue to possess rights and interests in land and water through their adapted system of traditional law and custom. In our opinion all members of the claim group hold rights and interests in all of the claim area.
9(a) What, if any, differences are there in the rights holding organisation at the time of effective sovereignty to any claimed rights holding organisation by the claim group?
At sovereignty land holding rights were most likely held by clans. Today land holding rights are held by a broader cognatically constituted group of WK people.
9(b) If differences in the rights holding organisation have been identified in the answer to question 9(a), by which process have any differences taken place?
Adaptation occurred due to population loss (removals, massacres and disease), managing the impact of non-Aboriginal paternity, movement towards townships and settlements, internment at reserves, and loss of detailed site specific knowledge relating to estates. This resulted in a shift from a focus on the local estate to a broader concept of country encompassing multiple estates amalgamated under a language name and identity.
...

11. Have the traditional laws and customs identified in question 2, including those pertaining to the holding of interests in land and waters, continued to be observed and acknowledged by members of the same society from effective sovereignty until the present day?

We confine our answer to the GNP cluster area.
Members of the relevant society have continued to observe a common system of law and custom since sovereignty. Not all of the laws and customs identified at Q2 continue to be observed and acknowledged (see Q6 and Q7).

12. Having regard to the answers to question 8, does the claim group have a connection with the claim area by their acknowledgment and observance of traditional laws and customs.

Yes.

13. If it is considered that connection is maintained by a right holding entity/entities, does this connection extend throughout the area of land and waters claimed in these proceedings? If connection is established only in respect of portions of the claim area, which portions?

Yes WK people's connection extends throughout the whole of the WK claim area.

33. As is common with joint expert reports, it can be seen that the opinions expressed in the WK Report are conclusory in nature.
34. The second conferral (on 22 February 2019) involved the experts for all of the Ganggalu Cluster. A joint report of Dr Martin, Dr Kenny, Dr De Rijke, Dr Powell and Mr McCaul was also filed on 19 March 2019 (Ganggalu Joint Report). The report is expressed in two sections. The first section is a collation of the joint reports in respect of each separate proceeding. Accordingly, the opinions expressed by Dr Martin and Dr Kenny in the WK Joint Report that relate to the Western Kangoulu claim are reproduced in the first section of the Ganggalu Joint Report. The second section of the report is headed “Society propositions posed by Registrars”. It contained 16 propositions in respect of which the experts were invited to express their agreement or disagreement. The State submitted, without contradiction by the applicant, that the propositions had been prepared by the Registrars convening the conference of experts without input from the parties. The propositions were expressed as follows (with agreement or disagreement signified by the use of bold type):
    1. Effective sovereignty in the area covered by all claims is in the date range 1844-60. [agree/disagree]
    2. The word “society” as used in the questions refers to a shared regional system of laws and customs and social networks. [agree/disagree]
    3. The term “cultural bloc” and “society” are being used by the experts in the present conference to the same effect. [agree/disagree – except for Dr Powell who would use them interchangeably but prefers the term cultural bloc]
    4. The entirety of the area covered by the GNP, Western Kangalou, Wadja and Wulli Wulli #3 overlap area claims is part of a common regional society. [agree/ disagree]
    5. The GNP cluster claims are defined as:

a. Western Kangoulu
b. GNP
c. Wadja
d. Wulli Wulli #3 overlap area
[agree / disagree]

6. Some members of the GNP, Western Kangoulu and Wadja claim groups may also identify as “Gangalu” in different contexts and/or through different descent paths. [agree/disagree]

...

11. At effective sovereignty, land holding rights under the traditional laws and customs of the regional society were held by members of local clan groups. [agree/disagree]
12. At effective sovereignty, landholding rights of a particular clan may have overlapped the boundaries between the GNP cluster claims and outside the boundaries of those claims. [agree/disagree]
13. Since sovereignty, an adaptation of the existing land holding system through amalgamation of clan estates and broadening of territorial association is evident. The experts agree that this adaptation is rooted in traditional laws and customs pertaining to rights and interests in land and waters. [agree/disagree]
14. The native title experts agree that the maintenance of rights and interests in land and waters in accordance with traditional laws and customs occurs notwithstanding ongoing and evolving political processes of differentiation between Indigenous people across the GNP cluster area. [agree/disagree]
15. Evaluating the records about apical ancestors’ association to areas is pivotal to a native title inquiry, alongside consideration of the broader social history of the area and the adaptations of indigenous land tenure. [agree/disagree]
16. The claim group description in the Forms 1 subject to agreed changes by the relevant experts, are agreed to be appropriate for all claims by the respective experts except in relation to the following:-

...
Western Kangalou
No Issues – no impediments to matter progressing to a consent determination on basis of the existing claim area and agreed group description (agree/disagree)
...
GNP (see individual conference report)

• ...
• Polly McEvoy, John Jack Bradley and Annie and Ned Duggan should be withdrawn from the GNP claim description and retained as ancestors of the Western Kangalou people (agreed - the stronger evidence is that they held land holding interests in the Western Kangalou claim area)

35. In respect of the Ganggalu Joint Report, the applicant relied particularly on the agreement of Dr Martin and Dr Kenny to the proposition that, in respect of the Western Kangoulu application, there were “no impediments to matter progressing to a consent determination on [the] basis of the existing claim area and agreed group description”.

Events after the expert conferral

36. On 14 March 2019, the solicitors for the applicant wrote to Crown Law stating the applicant’s view that the matter not proceed to trial and should instead proceed with negotiations towards a consent determination under s 87 of the NT Act. The letter stated that that approach was supported by the outcomes of the experts' conferences.
37. On 22 March 2019, Crown Law replied to that letter stating that the State was not currently in a position to agree with that course and required further time to decide whether it is able to enter into negotiations towards a consent determination. The letter acknowledged the agreement of the experts reflected in the WK Joint Report and the Ganggalu Joint Report, but stated:

However, the reasons necessary to explain the foundation of the agreements of opinions is of concern and requires the State to now undertake a complete review of the expert and lay witness evidence filed in the proceeding and to meet with its expert. It is against that background that the State must consider whether there is a credible basis to enter into consent determination negotiations.

38. On 30 May 2019, Crown Law wrote to the solicitors for the applicant stating:

The State has now completed reviewing the Western Kangoulu materials and formed the view that they do not provide a credible basis to demonstrate that the requirements of ss 223 and 225 of the Native Title Act 1993 (Cth) are met in this proceeding. On this basis the State is unable to enter into negotiations toward a consent determination.
The State accepts that on an initial reading of the reports produced at the conclusion of the joint conferences of the experts held in Brisbane in February 2019, the experts engaged by the Western Kangoulu Applicant and the State expressed agreement on most matters of substance. The basis for the opinions expressed in the reports is not apparent from the reports themselves and therefore recourse must be had to the individual reports of the experts to understand the basis of the expressed opinions and to assess whether the opinions ought be accepted as providing a credible basis. This step has been undertaken primarily by reference to the material filed by the Applicants, as Dr Kenny, the expert engaged by the State, has only provided an anthropological overview of the material across the claims and she states that it is not intended to be a comprehensive anthropological report on the Gaangulu Nation People cluster, including the present claim.
Having considered the totality of the material, a number of areas of concern to the State are exposed, including, but not limited to, the following:

1. there is not a sufficient factual foundation for the expert opinions;
2. the relevant society is not yet clearly articulated or understood, including the claimed society in the context of the regional society;

100. the composition of the claim group is not settled; and

4. the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional law and custom and connection to the claim area.

39. The Crown Law letter provided an explanation of each of the four identified concerns held by the State.
40. On 23 July 2019, Rangiah J made orders requiring the applicant to respond to Crown Law’s letter dated 30 May 2019, including whether the circumstances required or commended a concurrent hearing with the GNP claim or the Wadja claim, and for the State to respond including whether it sought a concurrent hearing. Further orders were made with the aim of narrowing the issues in dispute and to determine whether concurrent hearings would be required.
41. On 5 September 2019, Dr Martin provided the solicitors for the applicant with a letter responding to Crown Law’s letter dated 30 May 2019. The letter addressed the concern raised by the State that the Gorring/Martin Report was expressly qualified, with the Report stating (at [537]) that there had been a ‘severely truncated timeframe for our connection research with claimants’ and a ‘lack of access to non-claimant Aboriginal people’, and also stating (at [538]) that ‘[f]urther research including fieldwork may qualify the opinions we have expressed'. The letter then stated (referring to the Gorring/Martin Report as ‘our 2018 Report’):
    2. In our 2018 Report, Dr Gorring and myself compensated for these difficulties in five substantive ways:
       1. Firstly, through our examination of Mr McCaul's fieldnotes as set out at [33] of our 2018 Report;
       2. Secondly, through our consideration of Dr de Rijke's Gaangalu Nation People Connection Report 2014 and the three joint statements produced by Dr de Rijke and Mr Mccaul in 2014 and 2016 as set out at [35] of the 2018 Report;
       100. Thirdly, by engaging with Dr de Rijke and Mr Mccaul in producing two joint reports dated 21 May 2018 and 31 May 2018, as set out at [36] of the 2018 Report;
       4. Fourthly, through our consideration of the lay witness statements filed by the Applicant in the proceeding as set out at [37] of the 2018 Report; and
       5. Fifthly, through our consideration of the Review of Genealogical Data Western Kangoulu Ancestors by Dr Hilda Maclean, dated 11/9/2018.
    3. Following the completion of the 2018 Report, Dr Gorring ceased working on this matter.
    4. In late 2018, I was provided with further material in preparation for my participation in the joint conferences of experts on 21 February 2019 and 22 February 2019. This additional material included:
       1. Anthropology Report for the Wadja Native Title Claim by Mr McCaul, dated 29/11/2013;
       2. Supplementary Anthropology Report for the Wadja Native Title Claim by Mr McCaul, dated 31/3/2016;
       100. Expert Anthropological Report by Dr de Rijke dated September 2018;
       4. Anthropology Overview Report by Dr Anna Kenny; and
       5. Lay evidence in relation to the Gaangalu Nation People and Wadja Native Title Claims.
    5. In preparing for the joint conferences held at the Federal Court in Brisbane on 21 and 22 February 2019, I had recourse to this additional material, which supplemented the materials I and Dr Gorring relied on in our 2018 Report. I also gave the lay evidence filed in the Western Kangoulu claim, and some of the other basis materials relied on in the Expert Report, my particular attention. All of this material supported and strengthened my opinions expressed in the 2018 Report, such that the qualifications expressed at [538] of the 2018 Report are less relevant.
42. A copy of Dr Martin’s letter was provided to the State as an annexure to an affidavit filed before a case management hearing in October 2019. However, the letter does not appear to have been given prominence by the applicant prior to this interlocutory application, and the letter has not been formalised into a supplementary statement or report by Dr Martin.
43. During October 2019, the parties filed submissions addressing the further conduct of the proceeding. The applicant opposed concurrent hearings with the GNP claim or the Wadja claim. The State submitted that there were factors that commended a concurrent hearing but, having considered the submissions made in each of the proceedings, the State did not contend that concurrent hearings were necessary and proposed timetabling orders for the hearing of the Western Kangoulu claim separately. In its submission, the applicant reiterated its view that the issues in dispute should be resolved having regard to the outcomes of the joint conferences of experts recorded in the Joint Reports. The applicant further stated that depending on the resolution of any statement of agreed facts and substantive issues in dispute between the applicant and the State, the applicant may seek the Court’s leave to file further lay or expert evidence.
44. On 5 November 2019, Rangiah J made further orders to prepare the proceeding for a hearing of the Separate Questions, including that:

(a) the parties exchange amended pleadings addressing all issues other than extinguishment;
(b) the parties exchange a further document being a statement of facts and matters agreed and in issue; and
(c) the applicant make any application to strike out the State’s defence by a specified date.

45. On 6 December 2019, the applicant filed a further amended statement of claim. On 19 December 2019, Crown Law wrote to the solicitors for the applicant raising concerns about the further amended statement of claim and inviting the applicant to consider further amendments. On 14 January 2020, the solicitors for the applicant wrote to Crown Law advising that the applicant would seek the Court's leave to further amend the statement of claim, although it did not agree that all the issues raised by the State merited amendment. On 17 January 2020, the applicant filed that application seeking leave to file a further amended document.
46. The proceeding having been transferred to my docket, I listed the proceeding for case management on 21 February 2020. At that case management hearing, the State informed the Court that it opposed the applicant’s application to further amend the statement of claim in its proposed form. After hearing from the parties, I made orders for the parties to exchange submissions in relation to the application and listed it for hearing on a date to be fixed. It appeared that a hearing in relation to the State’s concerns with respect to the applicant’s pleading might assist in identifying more clearly the issues in dispute between the parties.
47. On 6 March 2020, the State filed submissions opposing leave being granted to file the further amended statement of claim in the form proposed. The State expressed concern that the pleading referred to the applicant’s expert reports and the Joint Reports by way of particulars, and also submitted that the pleading was unclear on a number of integers of the applicant’s claim.
48. Subsequently, the parties asked me to make orders by consent that adopted a different pathway to resolve the procedural impasse that had arisen. They proposed that instead of using pleadings to define the issues in dispute, the applicant would prepare a statement of facts and matters which it seeks the State to admit, and the State would prepare a responsive document. I made those orders on 30 March 2020. Relevantly, the consent orders provided that:

(a) by 17 April 2020, the applicant file and serve a statement of facts and matters which it seeks to have the State admit in relation to the hearing of the Separate Questions;
(b) by 8 May 2020, the State file and serve a response identifying which of the facts and matters it admits and which of them remain in issue in relation to the hearing of the Separate Questions;
(c) by 22 May 2020, the applicant file and serve any application to strike out, or in relation to, the State’s response; and
(d) the applicant’s statement of facts and matters and the State’s response will supersede all pleadings.

49. The applicant filed its statement of facts and matters on 17 April 2020. The document contains 17 statements which, reasonably closely, are drawn from the WK Joint Report. Footnote references are given to the relevant propositions in the WK Joint Report and, in a few instances, references are given to the Ganggalu Joint Report and to the underlying Gorring/Martin report and the Kenny Report.
50. The State filed its response on 8 May 2020. The response contained the following statements with the heading “explanatory comments”:
    1. This document is filed in accordance with Order 3 of the orders made by Justice O’Bryan on 30 March 2020. This document responds to the Applicant’s Statement of Facts and Matters, filed on 17 April 2020, which it seeks to have the State of Queensland (State) admit in relation to the Separate Question (SFM).
    2. Generally, as to the matters raised in the SFM, and the responses provided by the State:

(a) to the extent that the SFM asserts matters that are not in accordance with the Application filed on 10 January 2019, the State notes that the Applicant is not entitled to advance a claim in this proceeding that is in any material respect different from that for which it was given authorisation. To the extent that the Applicant does so and does not take steps to obtain authorisation or properly confine its claim in this proceeding, the State reserves the right to raise the matter with the Court at the appropriate time;
(b) the State intends at trial to explore with the witnesses, statements included in the lay witness material;
(c) opinions expressed in expert reports and reports of joint expert conclaves do not bind the State or equate to a determination of any issue by the Court. They remain subject to considerations of admissibility and weight, including adequacy of the reasoning expressed and whether they are based in reliable and sufficient lay or other evidence and will remain so following testing of that evidence; and
(d) furthermore and in any event, many of the expert opinions are heavily qualified.

3. The following responses ought be read in light of the above comments. Where the State says that it does not know a matter, it does so because the evidence available to date does not properly explain or support that proposition. Where the State admits any proposition, it does so on its own assessment of the available evidence. That is not a concession as to the admissibility or weight of any expert material footnoted in the relevant paragraph of the SFM.

51. The remainder of the document responded to the applicant’s statement in the style of a pleading. It identified certain differences between the applicant’s native title application and the statement; it admitted certain propositions; it stated certain additional facts relevant to, and potentially in conflict with, the propositions stated by the applicant; and otherwise stated that it does not know and does not admit the proposition.
52. The applicant submitted, and I accept, that the State’s response will necessitate a fully contested hearing of the Separate Questions. Lay and expert evidence filed by the applicant in support of the application and the Joint Reports will be contested, including by way of objections going to the admissibility and weight of expert evidence and cross-examination of lay evidence. During the hearing of this interlocutory application, the State confirmed that it did not seek to adduce further expert evidence, nor any other evidence, at the hearing of the Separate Questions.
53. The applicant’s interlocutory application filed on 22 May 2020 seeks an order striking out the State’s response. During the hearing of the interlocutory application, the applicant informed the Court that if such an order were to be made, it would then seek orders referring the proceeding for either case management or mediation before a registrar with a view to progressing the application to a consent determination of native title.

The applicant’s submissions

54. The applicant’s strike out application is founded on the contention that the Joint Reports have effectively resolved the central issues in the proceeding. It argued that for the State to adopt a position in the proceeding contrary to the conclusions expressed in the Joint Reports is:

(a) first, inconsistent with the overarching purpose in Part VB of the FCA Act (relying on the general principles stated in Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 (Aon) at [93] and [110]-[114] and Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing [2013] HCA 46; (2013) 250 CLR 303 at [51]- [57]);
(b) second, an abuse of process (relying on the principles stated in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 (Tomlinson) at [25] and UBS AG v Tyne [2018] HCA 45; (2019) 265 CLR 77 at [38] and [42] per Kiefel, Bell and Keane JJ, Gageler J agreeing at [61]; see also at [139] per Gordon J);
(c) third, a failure to act in good faith and contrary to the legislative intention of the NT Act for the recognition of native title rights and interests through negotiation and for contested litigation to be a last resort (relying on Widjabul Wia-Bal v Attorney-General of NSW [2020] FCAFC 34; 376 ALR 204 (Widjabul Wia-Bal) at [4] and [36]-[37] per Reeves, Jagot, Mortimer JJ and Western Bundjalung People v New South Wales [2017] FCA 992 (Western Bundjalong People) at [12]-[13] and [20] per Jagot J); and
(d) fourth, a breach of the Model Litigant Principles issued by the Queensland Government (and revised as at 4 October 2010) which require the State to deal with claims promptly, not to cause unnecessary delay, to endeavour to avoid and limit the scope of litigation wherever possible, keep the costs of litigation to a minimum where litigation is unavoidable and participate in alternative dispute resolution processes where appropriate.

55. The applicant submitted that the conferences, and the Joint Reports recording their outcomes, were to ensure that the Court, with the assistance of a joint position expressed by the independent experts after discussion among them unaffected by the views of parties who retain them, or of the parties’ lawyers, is informed as to the real issues that need to be resolved. Agreement reached at the conferences and recorded in the Joint Reports was intended to reduce the extent of the factual disputes between the applicant and the State and the time involved in any hearing. The Kenny Report is the only evidence the State has filed in relation to the hearing of the Separate Questions. The State put Dr Kenny forward as its independent expert to participate in the conferences of experts and the Court and the applicant (as well as the other parties participating in the conferences of experts) were entitled to expect that Dr Kenny was a competent participant in the conferences and that any agreed outcomes would have a substantive impact on the direction of the hearing of the Separate Questions. Further, the State agreed to the joint conferral process without raising any of the concerns, which it now advances, that the opinions expressed in the expert reports did not have a sufficient factual basis or foundation.
56. The applicant submitted that, before entering into an agreement under ss 87 or 87A of the NT Act, a State party is not required to obtain proof from an applicant which would demonstrate to the civil standard of proof, on the balance of probabilities, that the native title rights claimed exist; rather, a State party need only satisfy itself that there is a “credible basis” for an application: Widjabul Wia-Bal at [51]. The applicant submitted that, in circumstances where experts retained by the applicant and the State agree that there are no impediments to the matter progressing to a consent determination on the basis of the existing claim area and agreed group description, there is indisputably a credible basis for the application. That is particularly so where the State has filed no other evidence on the application. In those circumstances, for the State to put the applicant to proof in Court is to conduct itself not in good faith.
57. The applicant submitted that the State’s rejection of the agreed outcomes recorded in the Joint Reports and its refusal to admit, in the State’s response, facts agreed in those reports is neither in the interests of justice nor consistent with the overarching purpose in Part VB of the FCA Act. The State allowed the expert conferral to proceed and, by the position it is now adopting, has placed the applicant and the Court in the position where the substantial time and resources involved in the conferral process are at risk of being wasted and the opportunity to reduce or limit the size and scope of the trial lost.
58. The applicant argued that the State is seeking a “second bite of the cherry”. Having failed to achieve the outcome from the conferences of experts it desired, the State has rejected the Joint Reports and the evidence of the experts upon which those reports are based, including its own. The State’s actions require the substantial cost of convening the conferences of experts and producing the joint reports to be thrown away and the Separate Questions to be resolved by a fully contested trial at great cost, with all substantive facts in issue, in circumstances where it gives no weight to the only evidence it has filed. Such a course is unduly oppressive to the applicant, would bring the administration of justice into disrepute and would be an abuse of process.
59. The applicant submitted that an agreed statement in the Joint Reports is a substantive part of the proceeding and, if the State seeks to depart from the agreed statement, it must provide an explanation to the Court for the change of position and the circumstances in which the change came about, relying on the observations made by Rares J in Rainbow on behalf of the Kurtijar People v Queensland [2019] FCA 1683 (Kurtijar People) at [48] in a somewhat analogous context. A party seeking to throw open the agreement of the experts in the Joint Reports must establish that it would be in the interests of justice, and consistent with the overarching purpose in Part VB of the FCA Act, for the Court to permit this to occur.

The State’s submissions

60. The State contends that at all times it has conducted the proceeding in a way that is consistent with the overarching purposes of ss 37M and 37N of the FCA Act. It has refused to proceed to a consent determination because it is not satisfied that there is a credible basis for the native title application.
61. The State submitted that underpinning the strike out application is the unstated proposition that, the experts having conferred, the State is bound by their conclusions. The State contends that such a proposition misconceives the nature of an expert report. In that respect, the State advanced the following submissions:

(a) A report prepared by an expert, even one filed by a party, whether pursuant to directions of the Court or otherwise, may (but not must) ultimately be tendered as evidence at a trial. Even when (and to the extent that it is) admitted into evidence, it is just that – evidence and has no other status. The opinions expressed in it may or may not, in whole or in part, be accepted by the Trial Judge.
(b) A party to litigation is entitled to test both the underlying facts as well as the specialist reasoning. Such a course is entirely proper and not an abuse of process.
(c) The purpose of pleadings and particulars and, in appropriate cases, documents such as statements of facts and matters, serve the different purpose of defining the issues for trial. Pleadings and documents of that type may contain admissions by parties that will generally bind a party, unless leave to withdraw the admission is granted.
(d) Expert reports do not have that function. They are, by their intrinsic nature, not documents of a party, in the sense that they are not documents by which a party informs the Court or the other parties what its case is. They are not prepared by the party or its lawyers. Beyond a process of settling expert reports to ensure relevance and compliance with rules of evidence, a party is not entitled to draft an expert report to determine what the witness should say.
(e) A report coming out of a conference of experts is, at most, evidence that may assist the Court. As an expression of expert opinion evidence, it is subject to the same considerations as to admissibility and weight as an expert report.
(f) Even if experts were to agree, the parties remain free to contest the matters that they wish, including by disputing the admissibility of the expert evidence or by disputing the basis material. The fact that a joint report of experts was produced consequent upon Court orders or facilitated by Court Registrars does not change its status from a piece of evidence into an admission by the parties or a determination of issues by the Court.

62. With respect to principles of case management, the State submitted that a Court may decide that a party will be precluded from adducing further expert evidence after a conclave has occurred in furtherance of the overarching purpose. However, case management does not involve the Court ordering that the opinions expressed by experts are binding on a party.
63. The State submitted that each of the cases relied on by the applicant is distinguishable and do not support the order sought by the applicant in this proceeding.
64. In relation to the Model Litigant Principles, the State submitted that the principles provide guidance by the executive government to officers instructing in litigation on behalf of the State. If they are breached there may be consequences for the instructing officers but they are not matters that other litigants can rely upon: Tran v Minister for Home Affairs [2019] FCA 1126 at [34]. The State submitted that, in any event, it is not breaching the Principles. The Model Litigant Principles require the State to litigate according to stated principles of firmness and fairness. The principle of firmness requires the State to appropriately test all claims. The State acknowledges the special nature of native title litigation, involving in rem rights, which makes it more, rather than less, important to properly test claims. The principle of fairness requires that the State not require a party to prove a matter that it knows to be true. The State submitted that it is not offending that principle as it does not know the matters stated by the applicant to be true.
65. The State further submitted that the applicant’s statement of facts and matters has a number of deficiencies which have been raised previously by the State and not cured. The deficiencies fall into three topics: claim group description, society and the content of the asserted laws and customs:

(a) In relation to claim group description, the State observed that clarity is of fundamental importance because a crucial part of a determination of native title is the identification of the persons, or each group of persons, holding the common or group rights comprising the native title: s 225(a) of the NT Act. The State submitted that there is a significant divergence between the claim group description in the native title application and the description in the statement of facts and matters.
(b) In relation to society, the State emphasised the importance of clear identification of the relevant society whose normative system of laws and customs is said to have been passed from generation to generation, such as to constitute the system of laws and customs as “traditional”, relying on Yorta Yorta v Victoria [2002] HCA 58; (2002) 214 CLR 422 at [46]. The State submitted that the statement of facts and matters refers to Aboriginal people in occupation of the claim area as being part of a broader regional society but there is no clarity with respect to the scope of the regional society, or the relationship between the members of the regional society and locality specific groups, or the content of the traditional laws and customs that govern these matters.
(c) In relation to the content of the asserted laws and customs, the State submitted that the content is not set out in the statement of facts and matters.

66. Given the deficiencies in the statement of facts and matters, the State submitted that its response is proper and appropriate.

Consideration

67. As observed by Jagot J in Western Bundjalong People (at [7]), the provisions of Part VB of the FCA Act, enshrining the principle that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, are fundamental to the functions of our judicial system. As her Honour there explained (at [8]), those provisions have particular importance in the context of applications made under the NT Act. That is due to a combination of factors including, as recognised in the Preamble to the NT Act, the important public purposes of the legislation by which the people of Australia intend:

(a) to rectify the consequences of past injustices to Aboriginal peoples and Torres Strait Islanders brought about by dispossession of their lands; and
(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire,

and the legislative intention that the just and proper ascertainment of native title rights and interests is done, if possible, by conciliation and, if that is not possible, in a manner that has due regard to their unique character. In that context, the role of the State as a respondent to native title proceedings is particularly important. As Jagot J observed (at [17]):

It is the State party which is the landed successor to the dispossession of Aboriginal peoples. It is the State party with whom the principal negotiations about native title claims must take place. It is within the power of the State party to agree to resolve a claim by an applicant without the need for contested litigation and in a manner which is timely, efficient and does not involve disproportionate resources. It is the State party which is subject not only to the duties imposed by the NTA and the Court Act but also by the obligations of a model litigant. Unless the State party is both vigilant about discharging all of its duties in good faith, recognising the objects of the NTA and its unique role, and committed to taking responsibility for driving sensible and fair outcomes in a timely manner, there is no real prospect of other parties or the Court being able to effectively discharge their and its duties. There is also no prospect of matters being resolved in a manner which is consistent with the objects of the NTA.

68. It is well established that, as a respondent to a native title claim, the State represents the interests of all of the community: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 (Munn) at [29]-[30] per Emmett J. However, in determining whether to agree to a consent determination of native title, the State need only be satisfied that there is a credible or cogent basis to conclude that the statutory requirements of s 223 are satisfied: Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [37] per North J. It would be inconsistent with its obligations under the NT Act and Part VB of the FCA Act for the State to require an applicant to go further: Western Bundjalong People at [21]-[22]; Widjabul Wia-Bal at [51].
69. In the present matter, the State has advised the applicant that it does not presently consider that there is a credible basis for the native title claim. The State has explained its view in the Crown Law letter dated 30 May 2019, outlined above. The State submitted in the hearing before me that it is not seeking to require the applicant to persuade it on the balance of probabilities that the statutory requirements are satisfied.
70. The conduct of the State, about which the applicant complains, is the refusal to accept, as determinative of the Separate Questions, the opinions of the State’s own expert, Dr Kenny, as expressed in the Joint Reports. The applicant contends that the State should not be entitled to adopt that position in circumstances where it elected to file and serve Dr Kenny’s expert report and raised no objection to the expert conferral ordered by the Court. The applicant says that, where there is agreement between the expert anthropologists engaged by the applicant and by the State, there must be a credible basis for the claim.
71. While I am acutely conscious of the obligations imposed on litigants and the Court under Part VB of the FCA Act, and the special nature of proceedings under the NT Act, I am not persuaded that the State’s conduct warrants the remedy sought by the applicant. It may be accepted that the position adopted by the State is unusual. However, from time to time unusual circumstances arise in litigation. Each case must be examined on its merits to assess whether a party is failing to act in accordance with the duties imposed by the Court with respect to the conduct of civil litigation.
72. Certain of the propositions advanced by the State can be accepted and, at the end of the argument, were not truly disputed by the applicant.
73. First, an expert retained by a party is not the agent of the party. Before giving evidence, an expert is merely a potential witness in the proceeding. The Federal Court Rules 2011 (Cth), and the Practice Note issued by the Court in relation to expert evidence pursuant to those Rules, require experts to be independent of the party retaining the expert. Paragraph 3.1 of the Practice Note stipulates that an expert retained by a party is not that party’s ‘hired gun’ and that a party should never attempt to pressure or influence an expert into conforming their views with the party's interests. Paragraph 4.1 stipulates that the role of the expert witness is to provide relevant and impartial evidence in their area of expertise and that an expert should never become an advocate for the cause of the party that has retained the expert. It follows that statements made by an expert in their report, even when filed and served by a party, cannot constitute a formal admission by a party in the proceeding. Formal admissions reflect a decision by a party not to dispute an alleged fact and, generally, must be recorded in a pleading, an answer to a notice to admit or an agreed fact under the Evidence Act 1995 (Cth). A party is bound by a formal admission unless leave is given to retract the admission. The question whether statements made by an expert in their report, which is then filed and served by a party, could constitute informal admissions of a party, enabling them to be adduced in evidence as an exception to the rule against hearsay, can be left to a later time. However, it is difficult to see that such statements would satisfy the test in s 87(1)(a) of the Evidence Act 1995 (Cth) as being statements made by the expert on behalf of the party with the authority of the party. The act of filing and serving an expert report by a party cannot transform the independent character of the statements made in the report into statements made on behalf of the party. Even if such statements could constitute informal admissions, it would remain open to the party to persuade the Court that the opinions expressed or conclusions reached lacked a proper basis in the evidence before the Court.
74. Second, the Model Litigant Principles issued by the Queensland Government do not create rights on the part of other litigants. They are directions issued by the Queensland Government to those conducting litigation on behalf of the State. Accordingly, the interlocutory application brought by the applicant cannot be resolved on the basis of those Principles.
75. The real question raised by the interlocutory application is whether the conduct of the State, about which the applicant complains, is of a character that should disentitle the State from participating in the hearing of the Separate Questions in opposition to the native title claim advanced by the applicant. To state the question in that manner highlights the significance of the order being sought by the applicant. While the order is not, and cannot be, an order for summary judgment on the Separate Questions, it is an order that would summarily remove the State’s opposition to the Separate Questions in circumstances where the State is the only party actively participating in the determination of the Separate Questions and, therefore, the only contradictor.
76. The circumstances of this case differ from the circumstances in the two cases principally relied on by the applicant.
77. In Kurtijar People, Rares J was dealing with an application by three respondents for leave to file an addendum to the report of their expert anthropologist. It was an application that was made shortly before the commencement of the hearing. It was also an application that was made after a joint conferral of the experts. The addendum, which was put as a clarification, had the effect that a matter that had been agreed between the experts at the conferral became contentious. The change in position would have caused prejudice to the applicant because the applicant had prepared for the hearing on the basis that the matter was agreed. In those circumstances, Rares J would not allow the addendum to be filed, applying the principles of case management that are reflected in Part VB of the FCA Act. It was in that context that his Honour stated (at [37] and [38]):

Ordinarily, where a party seeks to change the substantive direction of a case either by an amendment, a withdrawal of an admission or, in this case, an attempt to qualify or withdraw an agreed statement in a joint expert report arranged and facilitated by the Registrar, an explanation for the change of position and the circumstances in which the change came about should be given to the Court. This is in order that the Court can weigh the explanation against the effects of any delay, the impact of the change of the position on the proceeding and on the other parties and the objectives in s 37M (see Aon 239 CLR at 215 [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Ultimately, the question comes down to what is in the interests of justice. Those interests are informed, but not concluded, by the objectives in s 37M. The Court must weigh up all of the relevant considerations and arrive at a decision that does justice to all of the parties.

78. His Honour made clear that the earlier agreement of the experts at the conferral was not a formal admission (at [42]). The case management issue before his Honour was the prejudice the applicant caused by an unanticipated change in position of three respondents shortly before the hearing. His Honour refused the application because there was not an adequate explanation for the delay in serving the addendum (at [49]) and the prejudice to the applicant in having to deal with the change in position shortly before trial (at [52]).
79. The circumstances of the present case differ: the State is not seeking to file any further expert evidence, whether by way of addendum or otherwise; there was no material delay in the State notifying the applicant that it maintained its opposition to the native title application; the State has provided an explanation for why it is maintaining its opposition to the native title application; and a date for the hearing of the Separate Questions has not yet been set.
80. In Widjabul Wia-Bal, the applicant sought a declaration to the effect that the Attorney General of NSW cannot lawfully require that the applicant agree an indigenous land use agreement as a condition of the Attorney General being willing to agree to the making of a native title determination by consent. The applicant argued that the Attorney General’s conduct was in breach of the obligation of good faith owed by the Attorney-General to the applicant in relation to the negotiation of an agreement for a native title determination by consent. The Full Court (Reeves, Jagot and Mortimer JJ) found that the existence of a duty on the part of each party and its representatives to act in good faith in relation to the conduct of a mediation is beyond argument, particularly having regard to s 94E(5) of the NT Act (at [36]). Further, it would be a breach of the duty imposed by s 94E(5) for a party to a mediation who does not have any bona fide dispute as to the existence of the native title rights which are sought to be the subject of a consent determination to withhold consent in an attempt to secure agreement on matters outside of the scope of the determination (at [38]). If a breach of such a duty were found, the powers available to the Court include an order under s 84(4) of the NT Act that a person cease to be party and an order under rule 16.21 of the Federal Court Rules striking out a pleading (at [42]). However, the Full Court concluded that it cannot be said that it is inherently impermissible, and thus not an act in good faith, for a State party to adopt a position in a mediation under Part 4 of the NT Act that its entry into an agreement under ss 87 and 87A is conditional upon the registration of an indigenous land use agreement (at [67]). The Court observed that ss 87(4) and (5) and 87A(5) expressly permit an agreement to involve matters other than native title. Therefore, even if an indigenous land use agreement is characterised as a matter other than native title, it must be permissible for the parties to negotiate about an indigenous land use agreement as part of a mediation under Part 4 of the NT Act.
81. Unlike in Widjabul Wia-Bal, here the State is not attempting to secure agreement on matters outside of the scope of the native title determination; rather, the State does not presently accept that there is a credible basis for the applicant’s native title claim.
82. It was common ground between the parties that, in order to agree to a consent determination, it is sufficient for a party in the position of the State to satisfy itself that there is a credible basis for the application. I am not persuaded on the evidence before me that the State is requiring the applicant to go further and thereby failing to act in good faith. In the present case, the State has consistently maintained the position that it does not accept that there is a credible basis to the applicant’s native title claim. That was communicated by Crown Law’s letter dated 22 March 2019, a few weeks after the conferral of experts. The State’s position was confirmed by Crown Law’s letter dated 30 May 2019, which provided an explanation for the State’s position. I do not accept the applicant’s argument that the State’s position is untenable given the agreement of the experts as expressed in the Joint Reports. The agreement of the experts is not conclusive of any issue in the proceeding. It is open to a party in the proceeding to demonstrate that the agreed opinions are based on factual assumptions that are not shown to be true on the evidence. It follows that the agreement of the experts does not necessarily establish a credible basis for the native title claim. The State has advised the applicant that it has examined the material filed in the proceeding and considers that: there is not a sufficient factual foundation for the expert opinions; the relevant society is not yet clearly articulated or understood, including the claimed society in the context of the regional society; the composition of the claim group is not settled; and the lay witness material is not of sufficient depth or detail to demonstrate continuing acknowledgement of traditional law and custom and connection to the claim area. On the evidence before me, I would not reach a conclusion that, in expressing those views, the State is not acting in good faith. It is not possible on an interlocutory application of this kind to undertake a detailed assessment of the views expressed by the State to determine whether they are correct or incorrect. That would require a partial trial of the native title claim. The applicant has not attempted to persuade me that the views expressed by the State are legally and factually untenable by reference to the lay evidence and expert reports that have been filed such as to create an inference of bad faith. The applicant relies solely on the fact that the State does not accept the conclusory opinions expressed in the Joint Reports by the expert anthropologists. In my view, that fact alone does not establish an absence of good faith.
83. I accept that it is regrettable that the State participated in the conferral of experts without raising any objection to the adequacy of the expert reports that have been filed, and raised its concerns after the conferral. However, I consider that the decisions made by the State fall short of constituting an abuse of process. It cannot be said that the State is using the Court’s procedures in a manner that is unjustifiably oppressive to the applicant or in a manner that would bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 at [25] per French CJ, Bell, Gageler and Keane JJ. I do not accept the applicant’s characterisation of the State’s conduct as seeking to have a ‘second bite of the cherry’. The State has made it clear that it does not seek to adduce further expert evidence, or evidence of any kind. Its position is simply that it does not accept that the material filed on behalf of the applicant establishes a credible basis to the claim, including because various integers of the claim remain unclear. While the State participated in the expert conferral without raising objections, two mitigating matters should be noted. First, at the time that orders were made for the conferral, the State had not yet filed and served the report of Dr Kenny. There was limited time for reflection on the totality of the evidence at that time. Second, the State sought to make the results of the conferral more informative by asking the experts to explain the reasons for any jointly held opinion and the evidence upon which the opinion was based. For reasons that were not explained, the experts chose not to provide that explanation, with the result that the agreed opinions were stated in a conclusory manner.
84. As noted earlier, it has long been recognised that, in a native title claim, the State appears in the capacity of parens patriae to look after the interests of the community generally and the Court expects the State to take a real interest in the proceeding in the interests of the community generally: Munn at [29]. At the same time, the State has an important role in ensuring that the purposes of the NT Act are pursued in a manner which is timely, efficient and does not involve disproportionate resources: Western Bundjalung People at [17]. The balancing of these considerations in a given case may be difficult. In the present case, I am not persuaded that the position adopted by the State demonstrates that the State is in breach of s 37N of the FCA Act by conducting the proceeding in a way that is inconsistent with the overarching purpose or is in breach of its duty to negotiate in good faith under the NT Act.

Conclusion

85. For the reasons given above, I will dismiss the interlocutory application. However, that is not the end of the matter.
86. I consider that the determination of the Separate Questions has been delayed for an unacceptably lengthy period. I am also conscious of the disparity of resources between the applicant and the State and, particularly, the applicant’s limited resources. For the reasons explained above, I accept that the State has concerns in relation to the applicant’s claim which has caused the State to refuse to negotiate an agreement under s 87 of the NT Act. However, I consider that, consistently with its obligations under the NT Act and the FCA Act, the State can and should do more to elucidate its concerns and to see if the applicant can resolve them to the State’s satisfaction.
87. Section 37P of the FCA Act confers broad powers on the Court to give directions about practice and procedure in a proceeding in pursuit of the overarching purpose. It seems to me that, in the first instance, the parties should engage more meaningfully about the State’s concerns to see if those concerns can be allayed. Further pleading steps are very unlikely to be helpful. However, it may be helpful for the State to articulate its concerns about the applicant’s native title claim (as reflected in the Separate Questions) in a series of detailed questions to the applicant, based upon the lay and expert evidence that has been filed. The applicant might then have an opportunity to answer those questions by reference to the existing lay and expert evidence that has been filed and, to the extent it considers appropriate, to file further lay or expert evidence. Through a process of that kind, directed and supervised by the Court, the State may become satisfied that there is a credible basis for the claim.
88. If, ultimately, the parties are unable to reach agreement in respect of the applicant’s claim, the Separate Questions should be listed for hearing on the basis of the evidence that has been filed by the applicant, including any supplementary evidence. As noted earlier, the State will be entitled to cross-examine witnesses and make submissions in the hearing, subject to the Court’s usual powers of supervision. If at any such hearing it becomes apparent that the position adopted by the State on the Separate Questions is unreasonable, the Court has power under s 85A of the NT Act to make an appropriate order for costs.

Associate:

Dated: 19 August 2020