Court Orders Native Title Applicant to Convene Claim Group Meeting

OUTCOME: Other

FEDERAL COURT OF AUSTRALIA

[NAME_1] on behalf of the [NAME_3] v [NAME_7] (No 2) [2022] FCA 593 File number(s): WAD 32 of 2018 WAD 611 of 2018 WAD 21 of 2019 WAD 28 of 2019 WAD 30 of 2019 WAD 176 of 2019

Judgment of: MORTIMER J

Date of judgment: 20 May 2022

Catchwords: [NAME_8] – question of appropriate relief for a finding of an abuse of the Court's mediation processes – whether meeting of [NAME_9] group should be convened to determine whether in-principle agreements with competing [NAME_9] groups should be honoured – whether costs should be imposed on the members of a [NAME_8] applicant for time and money wasted by other [NAME_8] parties in reliance on conduct found to be an abuse of process

Legislation: Federal Court of Australia Act 1976 (Cth), ss 4, 23, 44 [NAME_8] Act 1993 (Cth), ss 67, 85A Federal Court Rules 2011 (Cth), rr 1.31, 1.32, 1.40, 5.21

Cases cited: [NAME_10] Commissioner v [NAME_10], Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 [NAME_11] of the Torres [NAME_9] v State of Queensland [2018] FCA 772; 263 FCR 409 [COMPANY_13] v [NAME_14] (No 4) [2006] FCA 1050 CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 [NAME_15] v Attorney-General of New South Wales [2016] FCAFC 75; 241 FCR 301 Latoudis v Casey [1990] HCA 59; 170 CLR 534 [NAME_1] on behalf of the [NAME_3] v [NAME_7] [2022] FCA 221 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169

Division: General Division

Registry: Western Australia

National Practice Area: [NAME_8] of paragraphs: 55

Date of hearing: Determined on the papers

Counsel for the Applicant in WAD 21 of 2019 ([NAME_16]): [NAME_19] SC with [NAME_21]

Solicitor for the Applicant in WAD 21 of 2019 ([NAME_16]): [NAME_23]

Counsel for the Applicants in WAD 32 of 2018, WAD 611 of 2018, WAD 28 of 2019, WAD 30 of 2019 and WAD 176 of 2019 (the [NAME_26]): [NAME_30] QC with [NAME_32]

Solicitor for the Applicants in WAD 32 of 2018, WAD 611 of 2018, WAD 28 of 2019, WAD 30 of 2019 and WAD 176 of 2019 (the [NAME_26]): [NAME_34]

Counsel for the [NAME_7]: [NAME_35] SC

Solicitor for the [NAME_7]: State Solicitor's Office (Western Australia)

ORDERS WAD 21 of 2019

BETWEEN: [NAME_37] & ORS ON BEHALF OF [NAME_70] AND: [NAME_38] Respondent

WAD 28 of 2019

BETWEEN: [NAME_40] & ORS ON BEHALF OF THE [NAME_27] #1 Applicant AND: [NAME_38] Respondent

WAD 32 of 2018

BETWEEN: [NAME_40] & ORS ON BEHALF OF THE [NAME_27] #3 Applicant AND: [NAME_38] Respondent

WAD 611 of 2018

BETWEEN: [NAME_43] & ORS ON BEHALF OF THE [NAME_27] #7 Applicant AND: [NAME_38] Respondent

WAD 30 of 2019

BETWEEN: [NAME_46] & ORS ON BEHALF OF [NAME_71] AND: [NAME_38] Respondent

WAD 176 of 2019

BETWEEN: [NAME_50] & ORS ON BEHALF OF THE [NAME_49] #3 Applicant AND: [NAME_38] Respondent

order made by: MORTIMER J DATE OF ORDER: 20 MAY 2022

THE COURT ORDERS THAT:

1. By 10 June 2022, [NAME_16] is to notify the members of the [NAME_8] [NAME_9] group for the [NAME_2] of a [NAME_9] group meeting to be held on or before 25 July 2022.

2. The notification under order 1 must: (a) inform the [NAME_8] [NAME_9] group that the Court has ordered [NAME_16] to convene the [NAME_9] group meeting; (b) state that the business of the [NAME_9] group meeting is for the [NAME_8] [NAME_9] group to decide as a group whether or not to honour the in-principle agreements reached at mediation between representatives of the [NAME_2] and [NAME_27] in February 2019 and [NAME_2] and [NAME_24] in May 2019 by: (i) the [NAME_8] [NAME_9] group directing [NAME_16] to enter into an agreement with [NAME_24] concerning the cultural heritage interests of [NAME_2] in the [NAME_24] [NAME_9] area; and (ii) approving [NAME_16] discontinuing the [NAME_2] [NAME_9]; (c) state that, in the event the [COMPANY_53] decides not to honour the mediation outcomes, the Court has given the [NAME_54] and the [NAME_55] an opportunity to apply for compensation (by way of cost orders) for the time and resources the [NAME_27] and [NAME_56] have expended, in reliance on the actions of [NAME_16], and the Court will listen to all parties' arguments about this and decide whether to order [NAME_16] to pay those costs of the [NAME_25]; and (d) include a copy of the Court's published summary of the reasons for judgment in [NAME_1] on behalf of the Mullewa Wadjari People v Western Australia [2022] FCA 221 and a hyperlink to the Court's reasons for judgment; (e) include a copy of the present orders and a hyperlink to the Court's reasons for judgment for the present orders.

3. By 10 June 2022, [NAME_16] is to take all reasonable steps to post the summary of the Court's decision, and a hyperlink to the Court's reasons for judgment, and to these reasons for judgment, on any relevant websites and social media sites which it controls or to which it has access, and ask [NAME_34] to post the same information on its website. 4. [NAME_16] is to convene the [NAME_9] group meeting by the date specified in the notice given to the [NAME_8] [NAME_9] group.

5. Subject to any further order, and in accordance with r 5.21 of the Federal Court Rules 2011 (Cth), if [NAME_16] fails to comply with order 4, the [NAME_2] [NAME_8] [NAME_9] (WAD 21 of 2019) stands dismissed.

6. All members of [NAME_16] must attend the [NAME_9] group meeting.

7. If, prior to the [NAME_9] group meeting, any member of [NAME_16] considers they have a reasonable excuse for not attending the [NAME_9] group meeting, they must make an interlocutory application, supported by affidavit material, seeking a variation of order 6 of these orders. 8. [NAME_16] is to invite representatives of [NAME_34], in its capacity as the representative body under the [NAME_8] Act 1993 (Cth) for an area that includes the [NAME_2] [NAME_9] area, and representatives of the State, to attend and participate in the [NAME_9] group meeting.

9. The [NAME_9] group meeting is to be facilitated by an independent person agreed between [NAME_16], the [NAME_54], the [NAME_55] and the State prior to the [NAME_9] group meeting.

10. By 4 pm on the tenth working day after the [NAME_9] group meeting, [NAME_16] is to file a report to the Court signed by all members of [NAME_16] describing the conduct of the [NAME_9] group meeting, and the outcomes. The report must include the following: (a) whether, as a group, the [COMPANY_57] decided it is prepared to honour the mediation agreements in principle reached with the [NAME_58], or decided it is not prepared to do so; (b) the names of the members of the applicant who attended the meeting; (c) the names of the [NAME_8] [NAME_9] group members who attended the meeting who are not members of [NAME_16]; (d) the names of all other persons who attended the meeting; and (e) any resolutions voted on at the meeting, and whether or not the resolutions were carried.

11. If the report filed in compliance with order 10 states that the [COMPANY_57] has resolved not to honour the mediation agreements in principle reached with the [NAME_58], the [NAME_26] have leave to file, within 10 working days of the filing of the report, any interlocutory application for costs incurred by the [NAME_54] and the [NAME_55] in reliance on the actions of [NAME_16], but thrown away for failure to honour the mediation agreements in principle, including identification of any lump sum costs claimed by each of the [NAME_26].

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

13. If [NAME_16] opposes the relief sought in any interlocutory application, it must file submissions and any affidavit material upon which it seeks to rely within 10 working days of the filing of the interlocutory application, including a Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

14. Subject to any request by the parties for an oral hearing, any interlocutory application filed pursuant to order 11 will be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Background 1 These proceedings concern overlapping claims for [NAME_8] in the Geraldton region of Western Australia. Following protracted mediation and negotiation between the competing applicants, in-principle agreements were reached to withdraw the claims made on behalf of the [NAME_3], in return for certain alterations of position by the [NAME_26]. After considerable delays, and more than three and a half years since the beginning of mediation, following what purported to be a meeting of the [NAME_9] group for the [NAME_3], [NAME_16] informed the [NAME_26] that it would not implement those agreements. An account of these events and the context in which they occurred is provided in [NAME_1] on behalf of the [NAME_3] v [NAME_7] [2022] FCA 221 at [17]-[107], and in a published summary of that judgment. 2 In [NAME_1], the Court determined that there was no enforceable agreement between the relevant parties, and it was not appropriate at that stage for the [NAME_2] overlap claims to be dismissed as an abuse of process. However, the Court was satisfied that [NAME_16]'s conduct amounted to an abuse of the processes of the Court, in particular its mediation processes. 3 At [230]-[239], the Court outlined its preliminary views about what relief would be appropriate in respect of its finding of an abuse of process. It is appropriate to reproduce these views in full. I set out below a framework of the orders which I am presently inclined to consider may achieve that objective. I will hear the parties' submissions on this framework, and on any alternative proposed orders, in due course after the parties have had an opportunity to consider these reasons. [NAME_16] should be ordered to conduct a meeting of the [COMPANY_53], and in preparation for that meeting to circulate and distribute the summary of these reasons for judgment which the Court has prepared. It should be ordered to post that summary on relevant websites and social media sites, and ask [NAME_59] to post it on its website. The purpose of the further meeting will be to invite the [COMPANY_53], as a whole, to consider whether, having seen what the Court has said, they are prepared to honour the position their representatives encouraged the [NAME_25] groups to rely upon and to act in accordance with, and are prepared to discontinue any [NAME_2] [NAME_9] in the two overlap areas. An independent facilitator should conduct that meeting. It seems to me that it may be wise, even if not the subject of an order, that counsel and instructing solicitors who have been involved to this point on behalf of the [NAME_2] are not involved in the conduct of the meeting. If they are prepared to do so, the Court could direct a lawyer or lawyers for the State to attend that meeting and to provide such assistance as they consider appropriate. Of course, lawyers and others from [NAME_59] may also seek to assist, as the responsible representative body for the region. All members of [NAME_16] should be directed to attend the meeting. A majority of members of [NAME_16] appear to have been absent from almost all of the key events which have produced this situation. That is a failure of their responsibilities as members of [NAME_16]. It seems likely to be the case that [NAME_59] will need to provide funds for the conduct of the meeting, and the Court should hear [NAME_59]'s position on providing such funding, and how if at all the funds might be kept to an absolute minimum. A deadline by which the meeting must be held should be imposed. [ADDRESS] could well consider the holding of this meeting as the central evidence that the [COMPANY_53] wishes to prosecute its [NAME_8] application over the overlapping areas with the [NAME_25] claims, either by honouring the mediation outcome, or by rejecting it once and for all and seeking to go to trial. If the meeting is not held by the deadline, the Court might treat that failure as a failure to prosecute the [NAME_2] application in the overlap areas and it might dismiss the [NAME_2] application insofar as it overlaps with the [NAME_25] claims on the basis of want of prosecution. If the meeting is held by the deadline, then after the meeting [NAME_16] could be directed to report back to the Court, in writing and signed by all members of [NAME_16], ahead of a case management hearing on a date to be fixed. The report should inform the Court whether, as a whole, the [COMPANY_53] are prepared to honour the mediation outcomes reached with the [NAME_58], or are not prepared to do so. Meeting resolutions should be attached so that the Court can see how many [NAME_6] attended, and what resolutions were proposed and voted on. If the [COMPANY_53] as a whole is prepared to honour the mediation outcomes, the Court will hear all parties on next steps. If it is not, then the question of who holds [NAME_8] in the overlap areas will need to be set down for trial. [ADDRESS] may consider whether there should be a sum paid by [NAME_16] as security for the costs of the trial. The conduct of the trial should be subject to tight deadlines, and to strict measures to keep costs to an absolute minimum, including consideration of whether there should be limits on the number of witnesses, and how any expert evidence might be contained. Consideration might be given to whether there should be self-executing orders dismissing the proceeding for want of prosecution if deadlines are not complied with by [NAME_16]. If the [COMPANY_53] collectively decide not to honour the mediation outcomes, my present view is that there is a proper basis for the Court to consider whether there should be compensation (by way of costs orders) for the tremendous amount of legal time and resources the [NAME_27] and [NAME_56] have expended, in reliance on the actions of [NAME_16], but which would have been thrown away. Whether or not the State seeks to be included in any compensation for costs should be addressed. It might be perceived as unjust, having found an abuse of process, for the Court not to order some compensation by way of legal costs. There could be a question whether, to ensure responsibility is taken by those who are on the evidence responsible for the abuse of process, costs orders should be against those [NAME_6] present at each of the mediations, and/or each of the members of [NAME_16] who are responsible for instructions given to their lawyers. It is these individuals who bear the responsibility for not being candid over a period of three years with their neighbours, and/or for treating the Court's mediation process as something they could simply disregard. To be clear, there is no suggestion [NAME_59] should incur any liability for those costs. 4 The views above were formed on the basis that, the rights in issue being communal rights, it was the responsibility of the [COMPANY_53] as a whole to decide whether to honour the in-principle agreements. [ADDRESS] was not persuaded, on the evidence adduced by [NAME_16], that the position purportedly taken on behalf of the [NAME_9] group in rejecting the in-principle agreements reflected the views of all or even most of its members, or was a product of fully-informed decision-making of the wider [COMPANY_53]: [NAME_1] at [227]-[229]. Ultimately, the Court decided to invite the parties' submissions on the framework suggested as a preliminary view in the Court's reasons, as well as any proposal for alternative or further orders, either as an agreed position or by way of competing submissions and proposals: [NAME_1] at [230].

The parties' positions 5 The parties' submissions and proposals have now been received. The parties were unable to reach agreement on proposed relief. The [NAME_26] filed proposed orders that they submitted were consistent with the Court's proposed framework in [NAME_1]. They agreed with the Court that the framework was appropriate because it was ultimately the responsibility of the [COMPANY_53] to decide whether to honour the in-principle agreements, but that [NAME_16] had not established that the [NAME_9] group had formed a final position on the outcomes of mediation between [NAME_16] and the [NAME_26].

The [NAME_26]' proposed orders 6 The [NAME_26]' proposed orders may be summarised as follows. 7 [NAME_16] must notify the members of its [NAME_9] group of a meeting to be held in approximately a month's time from the date of the Court's orders. The notification must specify that the meeting has been ordered by the Court, and that its purpose is to determine whether [NAME_16] should be instructed to implement the in-principle agreements. The notification must also state that, if [NAME_16] is not instructed to implement the in-principle agreements, the [NAME_26] will be able to apply for compensation for the time and resources they have spent in reliance on the conduct of [NAME_16]. A copy and summary of the reasons in [NAME_1] and a copy of the present orders are to be included with the notification. Simultaneously, [NAME_16] is to publish the summary of [NAME_1] on "relevant websites and social media sites", and ask the [NAME_34] – the representative [NAME_8] body for the [NAME_2] [NAME_9] area – to post the summary on its website. The [NAME_26] submitted that such notification is required to ensure that the [COMPANY_53] is informed (directly) about the Court's reasons and, particularly, about the prospect of costs being awarded against [NAME_16], to the extent that the Court's summary of [NAME_1] did not advert to that issue. 8 All members of [NAME_16] are to attend the meeting, and the applicant must also invite representatives of [NAME_59] and the [NAME_7]. The [NAME_26] submitted that an order mandating the applicant's attendance is appropriate given the gravity of the occasion and the Court's finding that a majority of the members of [NAME_16] had not participated in the key events surrounding the present dispute: see [NAME_1] at [234]. The [NAME_26] also submitted that the [NAME_59] and State representatives could make statements and field questions that could assist in fully informing the decision of the members of the [COMPANY_53]. 9 The meeting is to be facilitated by an independent person agreed between the [NAME_8] applicants and the State approximately two weeks before the meeting is held. The [NAME_26] submitted that this offers ample time for the facilitator to prepare for the meeting and for the necessary financial and logistical arrangements to be made. In the absence of agreement, the [NAME_26] submitted that the parties could apply to the Court for a determination of an appropriate facilitator. 10 Soon after the conclusion of the meeting, [NAME_16] must file a report signed by all its members detailing the conduct and outcomes of the meeting, including whether the [NAME_9] group is prepared to honour the in-principle agreements, the list of persons who attended the meeting, and any resolutions voted on at the meeting (specifying whether the resolutions were carried). The parties are to return to the Court for case management following the filing of the report. 11 If the [COMPANY_53] decides not to honour the in-principle agreements, [NAME_16] should pay the costs that were incurred by the [NAME_26] for things done in reliance on the actions of [NAME_16] but frustrated by [NAME_16]'s failure to honour the in-principle agreements. The amount of costs is to be fixed as a lump sum, either agreed between the relevant parties, or determined by a Registrar of the Court on consideration of a costs summary and costs response as contemplated by paragraphs 4.10 to 4.14 of the Court's Costs Practice Note dated 25 October 2016. The [NAME_26] submitted that lump sum costs orders in these terms would be appropriate because the Court has found that the members of [NAME_16] have abused the processes of the Court to the detriment of the [NAME_24] and the [NAME_27], and that the existence of such orders would ensure that the [COMPANY_53] is aware of the consequences of not implementing the in-principle agreements and the Court's disapproval of [NAME_16]'s conduct. 12 If [NAME_16] fails to convene the meeting by the deadline specified in the orders, the [NAME_2] [NAME_9] is to be dismissed pursuant to r 5.21 of the Federal Court Rules 2011 (Cth). The [NAME_26] submitted that a self-executing order in these terms would be appropriate because of the significance of the decision to be made at the proposed meeting, and because the present controversy was at least partially caused by [NAME_16]'s numerous delays in conducting [NAME_9] group meetings. They submitted that, if there is a compelling reason for not holding the meeting by the deadline, [NAME_16] could apply to have the order varied, or seek leave to reinstate the proceeding after the order takes effect.

The State's position 13 The State agreed with the proposals and submissions of the [NAME_26], save for that the State took no position on the question of costs.

[NAME_16]'s position 14 [NAME_16] proposed that the Court should make no order other than an order dismissing the show cause motion. 15 On the subject of a further [NAME_9] group meeting, [NAME_16] submitted that the Court made no finding in [NAME_1] that the [COMPANY_53] meeting of 9 June 2021 was vitiated on legal grounds. Rather, in [NAME_16]'s submission, the Court found that dismissal of the [NAME_2] [NAME_9] over the overlap areas is likely never to have been an outcome that at least those individuals purporting to represent [NAME_16] and [NAME_9] group were prepared to encourage the wider [NAME_9] group to endorse: citing [NAME_1] at [225]. 16 Furthermore, and presumably on the alternative proposal that a further [COMPANY_53] meeting were to proceed, [NAME_16] contended that [NAME_59] would be obliged to financially support the organisation of the meeting (as the Court suggested in [NAME_1] at [235]), but the [NAME_26]' proposed orders do not reflect this. [NAME_16] also submitted that it is "not justifiable" to require the parties to agree on the identity of the facilitator of a further [COMPANY_53] meeting. Otherwise, [NAME_16] indicated that it would not object to the terms of the other orders regarding the conduct of the [NAME_9] group meeting, if [NAME_16] were to agree that the meeting was required. 17 On the subject of costs, [NAME_16] submitted that the purpose of a costs order against a party is not to penalise that party for their unreasonable conduct, but to compensate the other party for so much of their costs that such conduct has caused to be thrown away: citing Latoudis v Casey [1990] HCA 59; 170 CLR 534 at [13]. [NAME_16] submitted that the [NAME_26]' proposed costs orders are coercive in that they impose a penalty on deciding not to adopt the terms of the in-principle agreements. 18 Further, [NAME_16] submitted that s 85A of the [NAME_8] Act 1993 (Cth) governs the determination of costs in these proceedings. That section provides: 85A Costs (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs. 19 In [NAME_16]'s submission, the only relevant 'proceeding' for the question of costs and the purpose of s 85A(1) was the show cause hearing required on the Court's own motion. [NAME_16] submitted that the power in s 85A(2) does not extend to ordering compensation for costs incurred or thrown away in other proceedings to which the party against whom costs are sought is not a party. I infer this is a reference to the [NAME_25] proceedings. 20 Ultimately, [NAME_16] submitted that the appropriate approach is for the matter of costs to be deferred until such time as the costs caused to be thrown away by the conduct of [NAME_16] that has been found to be unjustifiably oppressive can reasonably be ascertained and quantified and the persons to be bound by such order can be identified. [NAME_16] also indicated that the parties should be given an opportunity to re-agitate the matter of costs at "an appropriate time".

Resolution 21 I do not accept the primary submission of [NAME_16] that the only order which should be made is that the show cause proceeding should be dismissed. There is nothing to dismiss. The show cause hearing was a process of the Court's own motion. It was a process undertaken in all six proceedings affected by the overlapping claims of the [NAME_24], [NAME_27] and [NAME_60], namely WAD21/2019; WAD23/2019; WAD32/2018; WAD611/2018; WAD30/2019 and WAD 176/2019, on the basis that all those claims have been dealt with together, and have been subject to the Court's mediation processes together, in respect of the overlaps. To confirm this, the orders made on 5 July 2021 to institute the show cause procedure included an order pursuant to s 67(1) of the [NAME_8] Act and r 30.11 of the Rules that all six proceedings be dealt with together. In substance that had in any event been the effect of Barker J's orders on 15 December 2017 referring all the proceedings concerning the overlap to mediation. If, contrary to the Court's actual conclusions, an order reflecting a rejection of all the contentions put on behalf of the [NAME_26] at the show cause hearing were otherwise appropriate, then the correct form of order would simply be an order that the overlapping claims proceed to hearing. 22 More substantively, the primary submission put on behalf of [NAME_16] simply sets its face against the substantive reasoning of the Court in [NAME_1], and the finding that the conduct of [NAME_16] was an abuse of the processes of the Court, particularly the Court's mediation processes: see [NAME_1] at [8]. 23 It should have been obvious to those advising [NAME_16] their primary submission as to appropriate relief would not be consistent with the findings of the Court about abuse of process. Yet the legal representatives elected to make such a submission, which seeks to ignore the key adverse finding made by the Court. 24 I consider it is appropriate to make orders broadly of the kind proposed by the [NAME_26], which in turn broadly follow at least some of the preliminary views I expressed in [NAME_1] at [230]-[239]. I have taken into account the submissions of [NAME_16] about the specific orders proposed, and in some cases I have modified the orders to accept some of the points made. 25 The power of the Court under s 23 of the Federal Court of Australia Act 1976 (Cth) to grant relief appropriate to the circumstances of a particular case is a wide one: see [NAME_10] Commissioner v [NAME_10], Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [109]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52 at [102]; CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 825 at [80]; Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41; 34 FCR 169. See also [COMPANY_13] v [NAME_14] (No 4) [2006] FCA 1050 at [7], where Young J held: [ADDRESS] has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see [NAME_61] No 2 [COMPANY_64] v [NAME_65] (No 3) (1998) 195 CLR 1 ([NAME_62]), at 32–33 [35] per Brennan CJ, [NAME_67], Gummow, Kirby and Hayne JJ, and at 61–62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 217–218 [10]–[12] and [15] per Gleeson CJ, at 231–232 [60] per Gaudron J, and at 241 [91] and 242–243 [93]–[94] per Gummow and Hayne JJ. 26 And, referring to Young J's statement, see [NAME_11] of the Torres [NAME_9] v State of Queensland [2018] FCA 772; 263 FCR 409 at [190] and [NAME_15] v Attorney-General of New South Wales [2016] FCAFC 75; 241 FCR 301 at [97]. 27 The orders to be made are also in my opinion supported by r 1.31 and r 1.32 of the Rules. 28 Particularly where the orders need to reflect the Court's findings on an abuse of the processes of the Court, the relief which is appropriate is likely to be highly fact specific. That is the case here. [NAME_16] abused the Court's mediation processes, by representing to the [NAME_26], and to the Court (both directly and through its Registrar) that it was prepared to agree to a negotiated outcome of the overlap claims involving specific terms it appeared to accept, when that was not the case. By its evidence and contrary to its submissions, [NAME_16] did not satisfy the Court that this was a position taken because of a genuine belief about rights to country held or endorsed by the [COMPANY_57] as a whole, rather than (as the evidence suggested) the view of a small number of individuals within the [NAME_9] group, who in their more than three-year negotiation with the [NAME_25], were not honest and transparent about their position until they announced a changed position in June 2021. 29 As the Court found in [NAME_1] at [9], the question of appropriate relief in these circumstances is difficult, but the relief must be informed by the Court's finding that it was not satisfied that: this changed position adopted by [NAME_16] is first, a position reflecting the views of all or most members of the applicant, and second, a position reflecting the fully informed decision making of the wider [COMPANY_53]. 30 See also [NAME_1] at [227]-[228]. 31 Given these findings, as the Court explained in [NAME_1] at [226], a dismissal of the [NAME_9] would not do justice between the parties: I do not consider dismissal of the [NAME_2] application insofar as it overlaps with the [NAME_25] applications would be an order which would do justice between the parties, even given the abuse of process by [NAME_16]. That is to inflict on a wider group of [COMPANY_53], and their descendants throughout generations, a consequence for actions they were neither involved in, nor sanctioned. It would also involve the Court imposing an outcome about who are the [NAME_8] holders for the area, against the asserted position of at least some prominent members of the [COMPANY_53] who now allege they hold [NAME_8] in those overlap areas. The same reasoning means that no remedy such as a stay would be appropriate. 32 For relief properly to address the abuse of process by [NAME_16] as it has been found to exist, the Court must be informed of the position of the [COMPANY_57] as a whole: being fully informed of all the circumstances, do they intend to honour the in-principle agreement made with the [NAME_25], or do they intend not to do so? If they intend to honour the agreement, then this outcome is capable of ameliorating or mitigating the previous abuse of process by delivering the outcome which was represented as both desired and acceptable to the [NAME_2]. The [NAME_26]' position accepts this to be the case, because they do not seek any costs orders in this situation. 33 If, having been fully informed of all the circumstances, the [COMPANY_53] as a whole decides not to honour the agreement, then two consequences follow. First, the abuse of process is not ameliorated or mitigated, and three and a half years of good faith work, expenditure of resources and change of legal position by the [NAME_58] in reliance on the position advanced by [NAME_16] to them (and to the Court) will be thrown away. Second, the overlap claims will need to go to trial. The first consequence gives rise to the question of whether there should be compensation by way of costs to the [NAME_26] for the work done in the mediation process, but thrown away because of the abuse of process.

Substantive orders 34 For the reasons at [28]-[33] above, having considered the parties' submissions and reflected on the matter, I find that it is appropriate for the Court to require [NAME_16] to hold a meeting of the [COMPANY_53], to inform that [NAME_9] group as a whole about the choice which needs to be made, and the circumstances which have led to that choice, including the Court's findings. 35 Given the Court's findings about abuse of process, I consider it is appropriate that if [NAME_16] decides not to comply with the Court's orders, and does not arrange a [NAME_9] group meeting as it has been ordered to do, then there should be a self-executing order dismissing the [NAME_2] [NAME_9]. By the orders made today, the Court has given [NAME_16] the opportunity to clarify the position of the [NAME_9] group it represents, one way or the other. [NAME_16] nor the [NAME_9] group are being compelled to implement the in-principle agreements. Rather, they are being compelled to clarify the position of the [COMPANY_53] as a whole, in circumstances where the Court can be satisfied [NAME_9] group members have been fully and properly informed of what has occurred since January 2018, and of the Court's findings, and that all members of [NAME_16] have participated in the decision making and through that active participation have fulfilled their responsibilities as members of a [NAME_8] [NAME_9] applicant. 36 The conduct of [NAME_16] in the past is what has made a coercive order of this kind necessary and appropriate. If [NAME_16] consciously elects to disobey the orders of the Court, then the Court can be satisfied it is doing so understanding that its disobedience will result in the dismissal of the [NAME_2] [NAME_9], and it will need to answer to its [NAME_9] group for that outcome. If there is such disobedience, then the [NAME_26], and their respective [NAME_9] groups, should not be put to any further expenditure of time and resources, nor any further distress and anxiety about the non-implementation of agreements they were led to believe would be honoured, and they should be able to finalise their claims to the overlap areas free of the [NAME_2] [NAME_9]. While this is a result which has an impact on all the [COMPANY_68], in this particular situation, it will only come about because of the deliberate disobedience of [NAME_16] to a court order, being a court order designed to allow the [COMPANY_69] as a whole to make an informed choice about whether or not to honour the in-principle agreements. In those circumstances, [NAME_16] would have, by its own disobedience to a court order, brought about the dismissal of the [NAME_2] overlapping [NAME_9]. The interests of the administration of justice, including the interests of ensuring that parties comply with orders of the Court even if they do not agree with them, supports this outcome. Thus, the self-executing order provides for what is necessary to serve the interests of the administration of justice in these particular circumstances. 37 Disobedience to, or non-compliance with, a court order is one of the express circumstances contemplated by r 5.21 as sufficient to justify dismissal of a proceeding. Rule 5.21 provides: 5.21 Self‑executing orders A party may apply to the Court for an order that, unless another party does an act or thing within a certain time: (a) the proceeding be dismissed; or (b) the applicant's statement of [NAME_9], or alternative accompanying document referred to in rule 8.05, be struck out; or (c) a pleading of the respondent be struck out; or (d) the party have judgment against the other party. 38 The [NAME_26] have applied for an order of this kind. In any event, the Court could make such an order of its own motion, if satisfied it was appropriate to do so: see r 1.40. 39 The orders relating to publication of material about the circumstances leading to the need for this [NAME_9] group meeting are designed to ensure ready access by all [NAME_9] group members to relevant information, and to ensure the publication of the reasons why this meeting is important, and necessary. Given the abuse of process findings, it is appropriate that the responsibility for taking these steps falls on [NAME_16], and this is also consistent with its role as a representative of the [NAME_9] group under the [NAME_8] Act. 40 [NAME_16] submits it is not appropriate to compel all members of the applicant to attend the [NAME_9] group meeting. I disagree. The evidence before the Court reveals a concerning lack of participation by a majority of members of [NAME_16] in the processes which led to the abuse of process. Instead, a much smaller number of individuals appeared to drive those processes. There was no evidence about consultation with the wider applicant group, or endorsement of what the particular individuals were doing, and representing to the Court and to the other [NAME_8] applicants. The [NAME_8] Act imposes certain responsibilities on members of a [NAME_8] applicant. It expressly provides for those individuals to act "jointly". If individuals are unwilling or unable to discharge those responsibilities, then the Act makes provision for them to be removed as members of an applicant: [redacted] 41 One point made by [NAME_16] that should be accepted on this issue is that there may well be exigencies (or "cause" as [NAME_16] puts it) which prevent an individual member of the applicant from attending the [NAME_9] group meeting, even if they had intended, and wished, to attend. I accept provision should be made for that possibility. However, I consider given the history of the overlap dispute, the Court should be satisfied, on a formal application and proper evidence, that such an exigency exists. Therefore, the orders will permit an interlocutory application to be made for variation of the order compelling attendance, so as to excuse an individual, if the Court is satisfied on the evidence it is appropriate that the individual be excused. It is regrettable that the Court should need to concern itself at this level with the conduct of a [NAME_8] applicant, but the history of the overlap dispute to this point means the Court should closely supervise the next steps. An order of this nature is also necessary to make the other orders of the Court effective and to fulfil the overall purposes of the orders. It is also necessary to protect the interests of the [NAME_26], as the wronged parties, in securing a substantive outcome – one way or the other – to the overlap claims which they can be satisfied truly represents the views of the [COMPANY_53], with the full participation of the members of [NAME_16]. 42 Given the history of the matter, it is appropriate that [NAME_59], as the representative body for the region, is involved in the meeting, if it wishes to be. It may wish to assist [NAME_9] group members, or [NAME_16]. It may wish to present its own views on the circumstances to the [COMPANY_53]. [ADDRESS]'s orders do not require [NAME_59] to do anything, but do require [NAME_16] to invite it to attend. A formal invitation should assist in assuring [NAME_9] group members that it is appropriate for [NAME_59] officers to be at the meeting, and to participate if they choose to do so. [NAME_59] is also not required to post any material on its website, but again, [NAME_16] must invite it to do so. That is part of the responsibilities of [NAME_16] in ensuring it has taken all reasonable steps to inform [NAME_9] group members about the meeting, why it is required, and the circumstances which have led to it. 43 [NAME_16] does not object to the [NAME_9] group meeting being facilitated by an independent person, but does object to orders requiring that person to be someone agreed between the parties. Its submissions do not develop the basis for that objection, but rather simply assert it is "not justifiable". I disagree. Once again, it is the conduct of [NAME_16] since January 2018 which justifies an order of this kind. As the reasons in [NAME_1] describe, [NAME_16] misled the other parties and the Court on more than one occasion, whether directly or indirectly through what the Court inferred it had instructed its lawyers to represent. Sometimes the misleading was by omission, sometimes it was express. [ADDRESS] is not confident [NAME_16] itself will select an independent facilitator. Although the Court has not made any express findings against the legal representatives of [NAME_16], the Court does not have confidence in those legal representatives being able to assist [NAME_16] in selecting a facilitator for the meeting who is truly independent. [NAME_16]'s legal representatives are, in the Court's opinion, too close and too bound up in this sequence of events. Further, that task may in any event place those legal representatives in something of a conflict of interest, their duties being to advance their client's interests. They will be able to perform that role in participating in an agreed selection of a facilitator with the other active parties to the six proceedings. The State, the [NAME_54] and the [NAME_55] all have an interest in the [NAME_9] group meeting being conducted independently and transparently. The effectiveness of the Court's orders also depends on that occurring. Requiring an agreed facilitator may involve some compromises, but it should result in the selection of a person who will be independent of the interests of any particular party to these proceedings. 44 There is an obvious need for a report back to the Court about the outcomes of the meeting. For that report to assist the Court in determining next steps, it must contain a sufficient level of detail about who attended the meeting, what was discussed and what the outcomes were. The orders are designed to ensure that level of detail. 45 The remaining matters should be dealt with separately.

[NAME_59]'s alleged obligations 46 I reject the submission of [NAME_16] that [NAME_59] should be ordered to fund the [NAME_9] group meeting. At [9] of its written submissions, [NAME_16] contends that the Court "recognised" [NAME_59] was "obliged to support financially the steps required for the convening of the meeting". The reference given is to [NAME_1] at [235], which states: It seems likely to be the case that [NAME_59] will need to provide funds for the conduct of the meeting, and the Court should hear [NAME_59]'s position on providing such funding, and how if at all the funds might be kept to an absolute minimum. 47 That is far from a definitive finding, or recognition. It was no more than a general statement, and in any event part of the Court's preliminary views. It expressly contemplates that [NAME_59] should be heard. [NAME_59] has not sought to be heard. 48 The legal representatives of [NAME_16] have not accurately represented the finding of the Court. In any event, their submission should not be accepted. 49 It is a matter for [NAME_59] to decide whether it is appropriate to fund the [NAME_9] group meeting in the particular circumstances. [NAME_59] is, I infer, well aware of its responsibilities as a representative body. [NAME_59] may well decide such funding is appropriate in the interests of the wider [COMPANY_53]. It may place conditions or limits on that funding. It may be aware of other sources of income available to the [COMPANY_53] of which the Court is not aware. It may consider the members of [NAME_16] should fund the meeting themselves. It may consider this is a straightforward situation requiring funding. These are all no more than possibilities, and are matters for [NAME_59].

Costs 50 Section 85A(2) of the [NAME_8] Act, read with s 44 of the Federal Court Act, governs the exercise of the costs discretion. 51 It is well established that the power to award costs has a compensatory purpose. That the purpose of a costs order is compensatory is made express by the terms of s 85A(2), which has as its premise that costs were incurred unnecessarily or more extensively than was reasonably necessary. 52 [NAME_16] contends "the proceeding" for the purposes of s 85A is the show cause hearing. I have dealt with that submission at [21] above, and rejected it. The relevant "proceeding" for the purposes of s 85A are the six proceedings in which the overlapping claims of [NAME_8] arise. Section 4 of the Federal Court Act defines proceeding thus: proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal. Example: Discovery is an example of an incidental proceeding. 53 It is those six proceedings, being proceedings in this Court, which were the subject of orders for mediation, and which have been dealt with together insofar as each proceeding involved an area of land and waters that overlapped with an area claimed in one of the other proceedings. It was within each of those six proceedings so described that [NAME_16]'s conduct was an abuse of process. The [NAME_2] [NAME_9] overlapped all of the five other claims. The costs were incurred by the respective parties in all of those proceedings, insofar as the costs related to the mediation and negotiations around resolving the overlapping claims. There is no legal difficulty in an order for costs being made under s 85A(2), read with s 44 of the Federal Court Act in some or all of those proceedings, if the Court considers an order is appropriate. 54 However, I consider a self-executing order of the kind proposed by the [NAME_26] is premature. I note the State does not seek any costs orders, so it adopts no position on this question. A costs order is premature because the conduct of [NAME_16] in relation to the [NAME_9] group meeting, and the group-wide decision making involved in it, as well as its future compliance with the Court's orders, may all be relevant factors to the exercise of the costs discretion. It would in any event be necessary to give the individual members of [NAME_16] an opportunity to be heard before any costs order is made, including an opportunity to adduce evidence. That is especially so where it seems likely any costs order might be made against individual members of [NAME_16], although on the evidence presently before the Court a majority of members of [NAME_16] may not have been directly involved in most of the steps which the Court has found to be an abuse of process. Therefore, the only orders which will be made will be orders which allow for a future process about costs thrown away, if the in-principle agreements are not to be honoured. 55 Finally, the fact that the question of costs arises only in the scenario that the [COMPANY_53] decides not to honour the in-principle agreements does not suggest any punitive or coercive purpose behind the Court's consideration of an application for costs, contrary to the submissions of [NAME_16]. That is because it is only where the agreements are not honoured that the past costs incurred will be thrown away. If the in-principle agreements are to be honoured, then all the drafting and negotiations will have been applied towards an outcome which will be realised. If the in-principle agreements are not to be honoured, then there must be a trial of all the overlapping claims, and the past abuse of the mediation processes by [NAME_16] is capable of being an unreasonable act or omission within the terms of s 85A(2) of the [NAME_8] Act, being acts and omissions which have caused the [NAME_26] to incur costs they would not otherwise have incurred. I say "capable" because these are matters for the Court to decide, if and when the occasion for a costs application crystallises, as I have explained. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.

Associate: Dated: 20 May 2022