© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the official source for authoritative text.
[2016] FCA 1416
Federal Court of Australia
2016-11-11
Mr P, White J
Original judgment source is linked above.
Number of paragraphs: 8
Solicitor for the Applicant: Mr T Campbell with Mr C Schwerdtfeger of Campbell Law
Counsel for the State of South Australia: Mr P Tonkin
Solicitor for the State of South Australia: Crown Solicitor's Office
Solicitor for fishing licence holders and water licence holders: Mr T Mellor of Mellor Olson
Solicitor for Local Government entities: Mr N Llewellyn-Jones with Mr C Alexandrides of Norman Waterhouse
Solicitor for the South Australian Native Title Services Mr A Beckworth of South Australian Native Title Services
Solicitor for Epic Energy and the Corporation of the Town of Walkerville: Mr E Vickery of Minter Ellison
Solicitor for the Commonwealth of Australia: Ms S Davis of Australian Government Solicitor
AND: STATE OF SOUTH AUSTRALIA & OTHERS Respondent
JUDGE: WHITE J DATE OF ORDER: 11 NOVEMBER 2016
WHITE J: 1 The application by the Kaurna People for a determination of native title was commenced on 25 October 2000. An amended application was filed on 4 July 2001. It was brought by 16 named individuals on behalf of the native title claim group. 2 Since 4 July 2001, four of the named applicants have died. By an interlocutory application filed on 16 September 2016, the applicants seek the removal of the four deceased from the application. 3 Initially it seemed that the applicants sought the order pursuant to s 66B of the Native Title Act 1993 (Cth) (the NT Act). However, counsel for the applicant has indicated that the applicants rely instead on s 62A of the NT Act and r 9.08 of the Federal Court Rules 2011 (Cth). That rule authorises the Court, amongst other things, to order that a party who is no longer a proper or necessary party to an action to cease to be a party. Counsel also drew the Court's attention to the decision of Mansfield J in Lennon v State of South Australia [2010] FCA 743; (2010) 217 FCR 438. 4 In Lennon, Mansfield J held that, when one of several persons authorised under s 251B of the NT Act has died, the remaining authorised persons may apply to remove that person as a party, without having to obtain a fresh authorisation under s 251B or to make an application under s 66B. His Honour considered that, unless expressly contradicted, authority to bring such an application was implicit in the original authorisation. In reaching that decision, Mansfield J referred to a number of the authorities, the legislative history, the current provisions of the NT Act, and declined to follow the approach of Siopis J in Sambo v Western Australia [2008] FCA 1575; (2008) 172 FCR 271. 5 The decision in Lennon has received general, but not unanimous, support in subsequent authorities. In Murgha on behalf of the Combined Gunggandji Claim v State of Queensland [2011] FCA 1317, the Court (Dowsett J) declined to follow Lennon and it was distinguished by the Full Court in FQM Australia Nickel Pty Ltd v Bullen [2011] FCAFC 30; (2011) 191 FCR 261 at [30]. However, Lennon was followed in Dodd v Queensland [2011] FCA 690, (2011) 195 FCR 65 at [17] (Logan J); Rex on behalf of the Akwerlpe-Waake, Iliyarne, Lyentyawel Ileparranem and Arrawatyen People v Northern Territory of Australia [2010] FCA 911 at [17] (Collier J); Barunga v Western Australia [2011] FCA 518 at [12]-[13] (Gilmour J); Weribone on behalf of the Mandandaji People v State of Queensland [2011] FCA 1169 at [18] (Logan J); WF (deceased) on behalf of the Wiluna People v State of Western Australia [2013] FCA 755 at [17]-[18] (McKerracher J) and Mansfield J himself followed his own decision in Roberts v Northern Territory of Australia [2011] FCA 242 at [2] and in Far West Coast Native Title Claim v State of South Australia [2012] FCA 733 at [52], noting that when one of a number of persons authorised under s 251B dies, then "generally speaking" the remaining authorised persons may continue with the claim and deal with the matters arising in relation to it. 6 In the present case, I consider it appropriate to follow Lennon without engaging in a detailed analysis of the issues and of the authorities. None of the respondents contended to the contrary. It is sufficient to say that I agree, respectfully, with the analysis of Mansfield J. 7 No party has suggested that it is inappropriate for the discretion arising under r 9.08 to be exercised in this case so as to remove the deceased applicants as parties to the proceedings. 8 Accordingly, the order of the Court on the interlocutory application of the applicants filed on 16 September 2016 is that the following named applicants be removed as applicants in the claim: (a) Phillip Davies; (b) Marlene McArthur; (c) Val Power; and (d) Timothy Williams. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.
Agius
State of South Australia
(2011) 195 FCR 65
(2011) 191 FCR 261
(2010) 217 FCR 438
(2008) 172 FCR 271