THE WUTHA APPLICANT'S CONTENTIONS
33 As previously mentioned, in resisting the Yugunga-Nya People's application, the Wutha applicant contended that the Court should exercise its discretion under s 84D(4)(a) of the Act. Section 84D(3) and s 84D(4) provides:
(3) Subsection (4) applies if:
(a) an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or
(b) a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.
…
(4) The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:
(a) hear and determine the application, despite the defect in authorisation; or
(b) make such other orders as the court considers appropriate.
34 The Wutha applicant contended that s 84D(4) was an ameliorative provision and the discretion thereby conferred was to be exercised with regard to the due prosecution of the litigation and the interests of justice. The applicant went on to contend that the particular circumstances constituted "a powerful case" for the Court to exercise its power under s 84D(4)(a) to allow the application to proceed to hearing and determination "despite the defect in authorisation" found by Lindgren J. Accordingly, the applicant said, the Court should allow the existing application (including the Yugunga-Nya overlap) to proceed to mediation or to determination, and not require the Wutha applicant to provide evidence of authorisation.
35 The Wutha applicant relied on a number of circumstances in support of its contention.
36 First, the applicant contended that the findings made by Lindgren J as to the lack of authorisation were not of general application and applied only to the extent of the area of the overlap of the Wutha claim with that of the Wongatha People. In my view, the findings are not so limited. The findings were of general application and have the propensity to invalidate the Wutha claim as a whole.
37 Secondly, the applicant said that there had been a very long period of delay between the registration of the amended Wutha claim by the NNTTA in June 1999, and the challenge made to the authorisation of the Wutha applicant by the State at a late stage of the Wongatha proceeding.
38 The State, contended the applicant, had initially objected to the registration of the amended Wutha claim by a letter to the NNTTA dated 19 November 1998. However, the Registrar rejected the State's submissions and the State did not challenge the registration by seeking a review of the registration. The applicant went on to say that it was only in its closing submissions in the Wongatha claim, which were filed five years after the registration of the amended 29 April 1999 claim, that the State raised the question of the lack of authorisation of the applicant. The applicant also pointed out that Lindgren J had commented adversely on the lateness of the challenge made by the State to authorisation and said that this may have costs consequences for the State.
39 It is the case, as the applicant contended, that one of the reasons for the introduction of the amendments comprised in s 84D of the Act was to mitigate any unfairness which may arise from an objection to authorisation being raised at a late stage of the proceeding. Further, it is the case that in June 1999, the Wutha claim as amended, passed the registration test as administered by the Registrar of the NNTTA. It is also, as Lindgren J stated, unfortunate that the State delayed making its objection until late in the trial of the Wongatha proceeding. But this is a separate proceeding to the Wongatha proceeding; and, although it has been on foot for a long period of time, the parties are not close to trial. The findings by Lindgren J raise important issues for the viability of the Wutha claim. In my view, the respondent parties to this proceeding have considered the impact of the findings of Lindgren J on the continued viability of the proceeding and reacted thereto, timeously; and certainly well before this proceeding is ready to go to trial.
40 Accordingly, albeit that this proceeding itself has been on foot a long period of time, there has not been any material delay by the respondent parties in responding to the findings of Lindgren J.
41 Thirdly, the applicant contended that there appeared to be a "discord" between the findings of Lindgren J that the applicant was not authorised pursuant to s 61 of the Act to bring the Wutha application, and the events that occurred in this Court and the NNTTA in 1999 in relation to the amended Wutha claim.
42 The applicant referred specifically to the following facts:
(a) a Deputy District Registrar of this Court had, by orders made on 29 April 1999, permitted the amendment of the Wutha claim in a form which described the claim group by reference to the reduced claim group;
(b) the Deputy District Registrar on that date also made orders dispensing with the filing of further affidavits to verify the amended application; and
(c) on 15 June 1999, the Registrar of the NNTTA registered the amended claim on behalf of the reduced group.
43 The applicant went on to observe that in making his findings on lack of authorisation, Lindgren J had only referred to the affidavits sworn by the persons comprising the applicant on 22 December 1998, which had been filed with the amended Form 1. Lindgren J, said the applicant, had not referred to the affidavits of Mr Lenny Ashwin, Mr Raymond Ashwin and Ms Verna Vos (see [25] above) that were before the Registrar of the NNTTA, nor had he considered the affidavit of Mr Michael Rynne dated 26 March 1999 (see [21] above) that was before the Court, dealing with authorisation.
44 In my view, little weight is to be accorded to the "discord" referred to by the applicant. First, as the applicant accepted, the decisions of the Deputy District Registrar of this Court, and the Registrar of the NNTTA were not intended to be conclusive as to the question of the validity of the authorisation of the Wutha claim. In any event, even if the applicant was of the view that those actions precluded Lindgren J from coming to the view he did, or was otherwise relevant to those considerations, it was open to the applicant to have raised those matters before Lindgren J.
45 What is clear, however, is that Lindgren J has identified defects in the authorisation of the Wutha applicant, including that the claim appears to have been made on behalf of a subgroup of the Wutha People. In those circumstances, the issue of authorisation is obviously an issue of major significance to the determination of the Wutha claim as filed.
46 The applicant sought to downplay the significance of Lindgren J's finding that on the evidence before him, it appeared that the applicant had been authorised only by a subgroup of the Wutha People, by characterising Lindgren J's observations as obiter dicta. However, in my view, whether Lindgren J's observations are to be classified as obiter dicta or not, the fact remains that Lindgren J has identified an issue as to authorisation which is fundamental to the viability of the Wutha claim, namely, the precise identity and scope of the persons on whose behalf the claim is brought. The removal of the 20 families from the amended claim group is a serious issue which needs to be explained and justified.
47 The fact that the defect in authorisation referred to by Lindgren J, is founded in a matter of such fundamental importance to the Wutha claim, is a factor that weighs strongly against exercising the Court's discretion under s 84D(4) to permit the matter to proceed to trial, despite that defect. Further, as I have already said, the proceeding is still in mediation and is a long way from trial. I, accordingly, reject the Wutha applicant's application that the Court exercise its discretion under s 84D(4) of the Act, to permit the matter to be heard and determined, despite the defect in authorisation referred to by Lindgren J.
48 It is, in my view, in the interests of justice that the question of authorisation be determined as a preliminary matter. For that issue to be fairly determined, it is appropriate that the persons comprising the applicant have an opportunity to advance any evidence upon which they wish to rely and to demonstrate that the application is lawfully authorised pursuant to s 61 and s 251B of the Act.
49 In this regard, I did not understand the applicant's position to be that the probative value of the evidence, which the applicant says was before the Court and the Registrar of the NNTTA, but was not taken into account by Lindgren J, was such as to satisfy the defects that Lindgren J identified in relation to authorisation. Certainly, the evidence does not address the rationale for the definition of the Wutha claim group by reference to the reduced claim group in the amended claim, and the justification for the removal of the 20 families. The rhetorical question posed by Lindgren J at [31] above is not addressed. Such evidence as there is appears to confirm Lindgren J's observation that the reduced claim group may be a "construct for NTA purposes, rather than a group recognised under traditional laws and customs". Also, this evidence does not deal with Mr Barber's evidence.
50 Once the evidence upon which the applicant seeks to rely in support of compliance with the authorisation requirements of the Act is filed, it is possible that the respondent parties to the application may be satisfied on the question of authorisation, or they may seek to bring an application for the dismissal of the Wutha native title determination application.
51 I will, therefore, make orders that each of the persons comprising the applicant file and serve such further evidence upon which they wish to rely to satisfy the statutory requirements that the persons comprising the applicant are authorised to bring the native title determination application.
52 I will hear from the parties on further directions.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.