Editors --- "Quall v Risk - Case Summary" [2002] AUIndigLawRpr 25; (2002) 7(2) Australian Indigenous Law Reporter 15

• Quall V Risk
• Facts:
• Held:

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Court and Tribunal Decisions - Australia

Quall v Risk

Federal Court of Australia (O’Loughlin J)

6 April 2001

[2001] FCA 378

Native title application — application for summary dismissal — failure of applicant to identify native title claim group — long history of failures to make identification — Native Title Amendment Act 1998 (Cth) ss 61(1), 61(4), 190A, 190B, 190C — Federal Court Rules O 10 r 2, O 10 r 7(1)(a)

Facts:

The principal proceedings involved an application for a determination of native title over waters and land in the Darwin Harbour area. The applicant, Mr Kevin Lance (’Tibby’) Quall, claimed to be acting for the Dangalaba clan. The first named respondent in the proceedings, William Maxwell Risk for the Larrakia people, sought summary dismissal of the proceedings pursuant to Order 10 Rule 7(1)(a) of the Federal Court Rules, s 84C(1) of the Native Title Act 1993 (Cth) (the Act) or Order 20 Rule 2(1)(a) of the Federal Court Rules. The applicant had filed his original application with the National Native Title Tribunal on 29 September 1998, prior to the enactment of the Native Title Amendment Act 1998 (Cth). However, in subsequent documents he changed the identity of his native title claim group, offering contradictory evidence as to its relationship with the Larrakia people.

Held:

1. The applicant’s application failed to identify, with any degree of certainty, the composition of the native title claim group that he claimed to represent. This established a case for summary dismissal under s 84C of the Act in spite of the Court’s reluctance to summarily dismiss a claim: [36]-[59], [66]. Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 cited. General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 cited.

2. In its original form, s 61 of the Act did not employ the term ‘native title claim group’. However, the applicant was not entitled to rely upon the fact that his application was originally lodged prior to the amendment of the Act and so avoid the effect of s 61 as amended. While an original application filed before 30 September 1998 is considered against the provisions of s 61 at that time, an application that is amended after that date by changing the particularity of the claimants must comply with the provisions of s 61 as amended: [60]-[65].

3. A failure to obtain authorisation from members of a native title claim group whose whereabouts are unknown would not prevent an otherwise legitimate claim for native title from proceeding, although this was not an issue in the proceedings: [13]-[14], [33].

4. Notwithstanding s 84C of the Act, since the evidence adduced did not establish that the applicant had been authorised by all persons who held the common or groups’ rights and interests, the application would be dismissed under O 20 r 2(1): [15], [69] Moran v Minister for Land and Water Conservation for NSW [1999] FCA 1637 discussed. Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 discussed.

5. While the applicant failed to comply with the timetable for the filing and service of his claim, he was an Indigenous person who, for most of the time, had been without the benefit of legal representation. As a result, it would be inappropriate to make an order against the applicant under O 10 r 7 (12): [20], [67], [75]. Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 98 ALR 200 cited. ?