Davidson v Fesl [2005] FCAFC 183 (30 August 2005)

Last Updated: 12 September 2005

FEDERAL COURT OF AUSTRALIA

Davidson v Fesl [2005] FCAFC 183

ABORIGINES – native title – application for native title determination – authorisation – whether application properly authorised at lodgement – application discontinued by leave – application for leave to appeal against grant of leave to discontinue – native title claim group – definition – difficulties and disputes about definition – connection to authorisation question – no substantial injustice arising out of discontinuance – benefits to be derived from filing of fresh native title determination application with properly defined native title claim group and adequate authorisation – application for leave to appeal against grant of leave to discontinue dismissed

Native Title Act 1993 (Cth)


Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 394 cited





ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER v EVE DOREEN FESL AND STATE OF QUEENSLAND
QUD 56 OF 2005



FRENCH, FINN AND HELY JJ
30 AUGUST 2005
PERTH (HEARD IN BRISBANE)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 56 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER APPLICANTS
AND:	EVE DOREEN FESL FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT JINIBARA PEOPLE, TONY DALTON AND OTHERS THIRD RESPONDENTS
JUDGES:	FRENCH, FINN AND HELY JJ
DATE OF ORDER: DATE OF PUBLICATION OF REASONS:	23 AUGUST 2005 30 AUGUST 2005
WHERE MADE:	PERTH (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The application for leave to appeal against the judgment of Spender J given on 22 February 2005 is dismissed.

2. The parties have leave to make submissions within 14 days on the question of costs and in particular whether any costs order in favour of the respondents should be taxed as one set between all or some of them.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 56 OF 2005

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	ALEXANDER KEITH DAVIDSON, CECIL HARRIGAN FISHER AND MISCHA MARI FISHER APPLICANTS
AND:	EVE DOREEN FESL FIRST RESPONDENT STATE OF QUEENSLAND SECOND RESPONDENT JINIBARA PEOPLE, TONY DALTON AND OTHERS THIRD RESPONDENTS

JUDGES:	FRENCH, FINN AND HELY JJ
DATE OF ORDERS: DATE OF PUBLICATION OF REASONS:	23 AUGUST 2005 30 AUGUST 2005
PLACE:	PERTH (HEARD IN BRISBANE)

REASONS FOR JUDGMENT ON APPLICATION FOR
LEAVE TO APPEAL

1 On 24 December 1999 Dr Eve Doreen Fesl filed in this Court a native title determination application in which she alone was named as applicant. That application was later amended, in August 2001. The native title claim group on whose behalf the amended application was said to be made was described in Schedule A to the application thus:

‘The Gubbi Gubbi biological descendants who are matrilineally descended from Maggie Crowe (nee Palmer) born circa 1840, died circa 1882, and James, born circa 1830, died circa 1893. Their female children were Lucy born 1871, died 1919, and Anne born 1874, died circa 1922. (Their son was Barlow born circa 1869 died circa 1910).

The surviving matrilineal descendants on whose behalf the claim is made are Evelyn Serico, Clifford Monkland, Lois Gulash, Eve Fesl, Nurdon Serico, Helena Gulash, Drew Gulash and future descendants.’

The original application included two additional named members of the native title claim group who did not appear in the amended application. On its face the group was exhaustively defined in the last two lines of that description by reference to the named persons and their future descendants.

2 The definition of the native title claim group in such applications is of importance. This is because standing to bring a claimant application under s 13(1) of the Act is confined, by s 61(1), to a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common law group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

3 It is also significant that the requirement of authorisation under s 61(1) appears to import the condition that the persons authorising are native title holders and not mere claimants. That, of course, is one of the issues to be resolved in the process initiated by the filing of an application. It follows that while authorisation can be regarded, from some points of view, as a threshold requirement for an application, it can never be resolved in favour of the applicants until the application is finally determined.

4 Dr Fesl was a named member of the native title claim group defined in the application. In an affidavit accompanying the amended application she said:

‘(iv) that I am/are authorised by all the persons in the native title claim group to make the application and to deal with the matters arising in relation to it;’

The basis upon which she claimed that authorisation was set out in sub-paragraph (v) of the affidavit thus:

‘I am an Elder of the Gubbi Gubbi people and Hon Secretary of the Gubbi Gubbi Land & Cultural Assn Inc, an organisation managed by, and which acts on behalf of Gubbi Gubbi people. I was requested at a meeting held on 24^th November, 1999, to make the application. This was passed by resolution – the Minutes of that meeting are included in "ATTACHMENT R".

Affidavits ("ATTACHMENT R") have been signed by all the claimants, authorising me to make this application on their behalf and to attend to the matters arising thereto.’

5 Attachment A to the amended application included a statement evidently made by Dr Fesl to demonstrate that the rules of membership of a land management group called the Gubbi Gubbi Dyununggoo Group was consistent with traditional modes of decision making. In that statement it was said, inter alia:

‘The claimants constitute the core group of Gubbi Gubbi. The senior
Elders speak for their family members both lineally and laterally related.

Evelyn Serico and Lois Gulash are the senior surviving daughters of Lucy and Anne, the daughters of Maggie Crowe. Clifford Olsen-Monkland is the senior male descendent. Without their approval this claim would not have been made.’

6 Attachment R to the application included a copy of the minutes of a meeting of the Gubbi Gubbi Land and Cultural Association Inc held on 24 November 1999 in Brisbane. Present were Mr N Serico in the chair, B Malezar, treasurer, E Fesl secretary, M Serico assistant secretary, D Gulash committee and A Davidson. The minutes recorded that the prime reason for calling the meeting was to give approval to the secretary, Dr Fesl, to prepare a native title application and to lodge it on behalf of those Gubbi Gubbi families who wished to be part of the claim and who had legitimate claims to kinship as Gubbi Gubbi. Dr Fesl reported at the meeting that she had contacted Aunty Bessie Bond and Michael Bond, both of whom agreed that they should proceed. The minutes also recorded that members spoke on behalf of their elders Lois Gulash, Evelyn Serico and Cliff Monkland who, because of age or lack of transport, were unable to attend. They had also agreed that the secretary should have permission to proceed with the claim. A resolution was then passed:

‘That the secretary prepare and lodge a claim on behalf of those Gubbi Gubbi people who were legitimately Gubbi Gubbi.’

The motion was put by Drew Gulash and seconded by N Serico and carried. Mr Davidson, the present applicant for leave to appeal was recorded as saying he was not against the motion but needed time to discuss it with his family and would not add his name until that had been done. In an affidavit subsequently filed in support of a strike out motion, Mr Davidson disavowed the accuracy of the minutes and denied that authorisation was ever discussed.

7 A number of pro forma statutory declarations made in June 2000 were also attached to the amended application. They were sworn by the named members of the native title claim group confirming that authorisation had been given by each of them to Dr Fesl to make the application and to deal with matters arising in relation to it. There were six such declarations made by each of the named members of the native title claim group, other than Dr Fesl herself.

8 On 11 October 2004 the present applicants for leave to appeal, Alexander Keith Davidson, Cecil Harrison Fisher and Mischa Mari Fisher, filed a notice of motion pursuant to s 66B of the Native Title Act 1993 (Cth) (the Act) in which they sought an order that they replace Dr Fesl as applicant on the basis that she was no longer authorised by the native title claim group to make the application and to deal with matters arising in relation to it.

9 On 17 November 2004 Dr Fesl, by notice of motion, sought leave to discontinue the application. That application was supported by her affidavit filed on the same date. She said in her affidavit:

‘When I lodged this claim, I believed that I had the authorisation of all of the Elders of our group descended matrilineally and biologically from our ancestor Maggie Palmer and her daughters Lucy Crowe and Annie Crowe.’
...
At the time I acted on behalf of the Elders and I believed that the claim had been properly authorised by them through their coming to a general consensus that it should be lodged. Some time after the claim had been lodged I found out that some important Elders were not happy with the process and indeed had not given their approval as I originally thought.’
...
There may be other Gubbi Gubbi families who can provide evidence that they are Gubbi Gubbi but who have not as yet come forward.’

Dr Fesl also deposed to not having been able to obtain consent to discontinue from all of the elders referred to in the claim.

10 The motion for leave to discontinue and the motion to substitute applicants both came on before Spender J on 19 November 2004. He adjourned them for hearing on 14 December 2004. On 22 February 2005, for reasons which he then published, his Honour gave Dr Fesl leave to discontinue the proceedings. He also ordered that the relief sought in the other notice of motion filed on 11 October 2004, be refused.

11 Alexander Davidson, Cecil Fisher and Mischa Fisher now seek leave to appeal against his Honour’s decision. In substance they wish to have his Honour’s decision giving leave to discontinue the application set aside and the motion for the replacement of Dr Fesl as an applicant remitted for consideration by his Honour.

The Reasons for Judgment on the Motion for Leave to Discontinue

12 His Honour set out as the ‘primary reason’ for acceding to the application for leave to discontinue the fact that the application was never authorised as required by s 61(1) of the Act. He said that Dr Fesl herself said that that was the case. No other party, not even Mr Davidson and those associated with his motion, contended for the initial authorisation of the application. On the basis of its want of initial authorisation, his Honour considered that the proceeding was likely to be found to have been flawed from the outset.

13 On the basis that the application was not properly authorised when it was lodged, his Honour concluded that it was not a ‘claimant application’ as defined in s 253 of the Act. In that section, ‘claimant application’ is defined to mean:

‘a native title determination application that a native title claim group has authorised to be made, and unless the contrary intention appears, includes such an application that has been amended.’

Authorisation by the native title claim group was the essence of a ‘claimant application’. His Honour described ‘authorisation’ as ‘a threshold requirement to the operation of s 66B of the Act’ under which applications may be made to change the composition of the named applicants in a native title determination application.

14 In considering the application for leave to discontinue the proceedings his Honour was conscious that it would deprive the claimants of the ‘benefits of registration’. A discontinuance however would not deprive them of the benefits already obtained and would not prevent a new claim being registered assuming it met the registration requirements of the Act. His Honour concluded that it was efficient and in the interests of justice to make orders that the applicant, Dr Fesl, be given leave to discontinue the proceedings and that the relief sought in the motion filed by the Davidson interests on 11 October 2004 be refused.

15 His Honour referred to affidavit evidence which had been filed in support of the Davidson motion seeking the replacement of Dr Fesl. He observed that as at 19 November 2004 all of those deponents were indigenous respondents to the application with the exception of one who was a member of the claimant group. There were also affidavits filed in opposition to the motion, the deponents of which were all members of the native title claimant group. One of those affidavits by Dr Fesl’s brother, Nurdon Serico, deposed to the customary decision making processes of the Gubbi Gubbi people and argued that the 9 October 2004 meeting, purporting to authorise the replacement motion, was in contravention of those processes.

16 His Honour referred to what he described as an important affidavit of Dr Fesl filed on 26 November 2004. In that affidavit she said that after reading affidavits filed in the proceedings in support of the strike out application brought in June 2003 by Mr Davidson and others associated with him she had concerns about whether she had been fully authorised according to the consensus model of decision making which is the traditional cultural method of decision making of the Gubbi Gubbi people. She said that a solicitor, Mr Gore, who was acting for other parties to the application advised her that he would assist in preparing material for her in opposition to the strike out because it would be difficult for a new claim to become registered. She said that she agreed as she did not want the claim to be lost forever. Mr Gore produced affidavits for her signature in respect of the strike out application. She subsequently became aware of connections between Mr Gore and Ashton Lomax Property Development Management Services, an organisation negotiating an Indigenous Land Use Agreement (ILUA), with the Gubbi Gubbi people. She was party to some negotiations prior to the strike out application. She was interested in negotiating an ILUA and was given a draft copy of a proposal by which funds would be made available from the Ashton Lomax Property Development Management Services to defend the strike out application. That strike out application was discontinued on 5 September 2003.

17 Dr Fesl said that she was not present at the 9 October 2004 meeting but that she met with senior members later at which time she was urged to discontinue to enable another claim to be filed which was properly authorised using the consensus method of determination and which could include all members of the Gubbi Gubbi including new ones which she had recently identified. She said that one of the elders, Bessie Bond, had said that she did not authorise the original claim to be filed by her. An affidavit sworn by Bessie Bond on 2 December 2004 made this clear. Dr Fesl also referred to objections which were recorded by Mr Davidson and others at the time the claim was going through the registration test to the effect that the claim was not authorised.

18 The Davidson interests however submitted to his Honour that Dr Fesl’s admission meant that she did not have the authority of all members of the claim group to exercise the power of an applicant. On that basis she could not discontinue the claim. The admission that she lacked authority did not render the claim void ab initio. It supported, according to the submissions on behalf of the Davidson interests, the application for her replacement by persons who had been authorised by members of the native title claim group to do so.

19 His Honour did not find much persuasive value in that argument. He said:

‘All parties are agreed that Dr Fesl was not authorised by the claimant group although there is a wide diversity of opinion as to what is the correct claimant group. In this factual context, it is important to look at the definition of ‘claimant application’ in s 253 of the Act, which says that a claimant application ‘means a native title determination application that a native title claim group has authorised to be made’. If the application that was in fact made was not an application that the native title claim group had authorised to be made, the application is not a ‘claimant application’. One consequence of this is that s 66B of the Act (which has, in my opinion, the precondition that the application is a claimant application) is in my opinion incapable of application.’

20 His Honour said:

‘I am satisfied that the original application was not authorised as required by s 61 of the Act and does not constitute a ‘claimant application’ as defined by s 253 of the Act. I am conscious of the difficulties discontinuing the original application will cause, but it has to be recognised that there are serious disagreements concerning the identification of the proper claimant group and the basis of identification of that group.

Those considerations support the conclusion that I reach that, notwithstanding the undoubted difficulties that flow from permitting discontinuance of an application which has received registration which is now more than five years old might bring, it is appropriate in all the circumstances of the present case to permit leave to Dr Fesl to discontinue the proceedings she initiated in 1999, pursuant to O 22 r 2(2) of the Rules of the Federal Court.’

The Application for Leave to Appeal

21 The application before the Court is for leave to appeal from his Honour’s decision. The criteria upon which such leave is given were considered in Décor Corporation Pty Ltd v Advance Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-9. The primary criteria are:

(i) whether in all the circumstances the decision the subject of the application for leave is attended with sufficient doubt to warrant its reconsideration by the Full Court;
(ii) whether substantial injustice would result if leave were received, supposing the decision to be wrong.

22 The present case is one in which his Honour took a view of the initial authorisation requirement that may be debatable. If his Honour did not intend to characterise want of initial authorisation as an irreparable defect it is clear that he considered that no repair could be effected through the use of s 66B to apply for a change in the named applicants. This raises the question whether an application, deficient in initial authorisation, can be permitted to continue without any possibility of rectification. We do not consider it necessary to answer that question here. We have serious doubts that such a result was intended by the legislation. In that sense it may be said that some aspects of his Honour’s reasons may be attended with some doubt.

23 The proposed grounds of appeal range wider than that consideration however. They challenge his Honour’s factual conclusion that Dr Fesl lacked authorisation. They challenge the weight which he attributed or did not attribute to various matters including the question whether the original application was ratified by the Gubbi Gubbi people at a meeting held in October 2004.

24 In our opinion, however, the practical considerations in this case are overwhelmingly in support of the proposition that no substantial injustice would be suffered by any party if leave were refused. His Honour had regard to those practical considerations in his reasons for judgment when he pointed to the ‘wide diversity of opinion as to what is the correct claimant group’ and ‘... the serious disagreements concerning the identification of the proper claimant group and the basis of the identification of that group’.

25 As already noted the definition of the claim group is of great importance. The definition in the application is curiously constrained. While the identification of the claim group is so constrained and contentious it is difficult to see how the question of authorisation, which is dependent upon that definition, can ever satisfactorily be resolved.

26 The authorisation process relied upon by the Davidson interests to support their s 66B application is attended with doubt about the adequacy of the notification of, and of the participation in, the meeting of October 2004. The minutes of the authorisation process for the initial application in 1999 also raise doubts about participation by key elements of the defined native title claim group.

27 The evidence of prejudice to the applicants who seek leave to appeal is not very specific and may depend, in any event, upon the scope of the native title claim group as defined. In our opinion there is no substantial injustice arising from the discontinuance of the native title determination application. In fact there are considerable benefits to be gained in the opportunity that is now provided for a more thorough consideration of the scope of the native title claim group and the steps necessary to ensure that proper authorisation by that group is secured from named applicants.

28 In our opinion the application for leave to appeal against his Honour’s decision should be dismissed.

29 The proposed orders were announced in open Court, the Court indicating that its reasons for judgment would be published later. Counsel for the various respondents sought an order for costs of the application for leave to appeal. Counsel for the applicants resisted this on the basis of s 85A of the Act. In our opinion, however, there was no demonstratable benefit to indigenous interests flowing from the bringing of the application for leave. There is plainly a practical need to focus upon sorting out differences between the various elements of the Gubbi Gubbi people that have hitherto impeded the development of a properly defined native title claim group which could advance its native title claim as one. Collateral litigation of this kind does not serve the purposes of the Act. Nevertheless we will allow the parties to make written submissions on the question of costs. Those submissions should also address the question whether, given the identity of interests between the respondents the costs, if awarded against the applicants, should be taxed as one set as between all or some of the respondents.

I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 30 August 2005

Counsel for the Applicants:	Mr J Griffin QC
Solicitor for the Applicants:	Dillon Lawyers
Counsel for the First Respondent:	Mr M Byrne
Counsel for the Second Respondent:	Mr G Hiley QC with Ms H Bowskill
Solicitor for the Second Respondent:	Crown Law
Counsel for the Third Respondent:	Mr AM Preston (Pro bono)
Date of Hearing: Date of publication of reasons:	23 August 2005 30 August 2005
Date of Judgment:	23 August 2005