Case: Browne v Dunn (1893) 6 R 67
Outcome: cited
the above reasons, my conclusion is that the Wongatha application, in its original and subsequent forms, was not authorised by all the persons who (hypothetically) hold the group rights and interests comprising the particular native title claimed, as required by s 61(1) of the NTA. The accompanying affidavits under s 62(1) of the NTA and Browne v Dunn (1893) 6 R 67 The Wongatha applicants submit that there is sufficient compliance with s 61(1) and that '[t]he evidence on authorisation was simply not disputed'. They submit that the allegations raised in final submissions were not put to the applicants in cross-examination. Fourteen of the 40 persons who attended the Maku Stadium meeting testified, but only four of them were cross-examined about the meeting at all, and none as to how they learned of it. Aubrey Lynch said: call a meeting with all the applicants that had actually lodged a claim in the area to come to a meeting at the Maku Stadium so that we can discuss amalgamation.' If the word 'applicants' in this passage were to be understood in a literal sense, it would signify that it was only antecedent applicants, not antecedent claimants, who attended. There would then arise in stark form the question of their authority to commit their respective claim groups to a combination. Apart from Aubrey Lynch, no applicant was cross-examined on the decision making process at the meeting. Doreen Harris said that she was aware of the meeting but could not attend. Eleven of the 12 Wongatha applicants testified, and none were challenged on the content of their s 62 affidavits. The Wongatha applicants submit that in the circumstances a failure to cross-examine witnesses on authorisation enlivens a principle analogous to that associated with Browne v Dunn (1893) 6 R 67 (' Browne v Dunn '). Subsection 62(1) of the NTA provides, relevantly, that a claimant applicant must be accompanied by an affidavit sworn by the applicant: that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and stating the basis on which the applicant is authorised as mentioned in subparagraph (iv).' In a case such as the present one, all 12 Wongatha applicants are jointly 'the applicant': NTA s 253 ('applicant'), s 61(2). Authorisation is dealt with in s 251B (see 1.5 [75]). There is no prescribed form of accompanying affidavit. Each of the 12 affidavits that accompanied the Form 1 that was annexed to Mr de Kerloy's affidavit sworn 3 February 1999 and filed on 8 February 1999, stated, relevantly: am authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to the application pursuant to the process of decision making that: under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind; and the persons in the native title claim group have also agreed to and adopted in relation to authorising the making of the application and dealing with matters and in relation to doing things of that kind.' The 12 s 62 affidavits that accompanied the Form 1 filed on 1 November 1999 contained an almost identical formulaic paragraph. On 10 December 2003, the last day of the taking of evidence, in Perth, months after all indigenous testimony had concluded in the Goldfields, the Wongatha applicants tendered the successive Wongatha Forms 1 and accompanying s 62 affidavits. Group 6A objected to the tender of the affidavits. In response to a question by me, counsel for the Wongatha applicants said that he wished to rely on them as if they were read and as evidence of the truth of their contents. He claimed that the Wongatha applicants had indicated to the other parties since April 2003, that they intended to tender the documents and that no one had raised an objection. On 23 February 2004, I ordered that: shall be two folders of Forms 1 including affidavits annexed to them, without prejudice to the right of any party to make submissions that no weight or little weight should be given to the affidavits.' In the somewhat unusual circumstances, I do not think that the failure to cross-examine all the Wongatha applicants who testified on their s 62(1) affidavits activates a principle analogous to that of Browne v Dunn . All parties proceeded on the basis that a return to the Goldfields for cross-examination of the remaining 11 Wongatha applicants who testified on their affidavits was out of the question, and that it was a matter for me to determine the weight to be given to the affidavits in the light of all the evidence on authorisation that was before the Court. The Browne v Dunn principle is one of fairness. I do not think there is unfairness to the Wongatha applicants in the respondents being permitted to succeed on the authorisation point. Of course, if the applicants' Browne v Dunn submission had succeeded, the result would not be that the Court would be required to treat the Wongatha application as if it had been duly authorised. Conclusion on authorisation Authorisation goes to the Court's jurisdiction to make a determination on the present application: see the authorities cited at [1171] and [1172] above. I am not at liberty to fail to resolve the issue over jurisdiction that the respondents have raised. I hold that the Court does not have jurisdiction to hear and determine the Wongatha application. Against the possibility that I am wrong, however, I will proceed to deal with the Wongatha Claim on its merits. 4.2 RELEVANT SOCIETY AT THE TIME OF SOVEREIGNTY ('THE ANCESTRAL SOCIETY')