Agius v State of South Australia

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

1. The names Phillip Davies, Marlene McArthur, Val Power and Timothy Williams be removed as applicants in the claim. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.