Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister... [2010] FCA 1073 | Case summary

The time for filing and service of the amended Native Title Determination Application and all material on which the applicants seek to rely in relation to the preliminary question as provided for in Order 3(a) and (b) of Orders made by Justice Moore on 25 July 2008 be extended to 29 October 2010.
In the event that the applicants do not, by the date specified in Order 1 above: (a) comply with order 1 above; and (b) file and serve an affidavit of one of the applicants, stating, on behalf of the applicants that the material filed and served by the applicants comprises all the material on which the applicants seek to rely in relation to the preliminary question, these proceedings will stand dismissed without further order.
The parties have liberty to apply to re-list the proceedings for further orders or directions on 7 days' notice.
In the event that the proceedings are not dismissed pursuant to Order 2 above, the proceedings be listed for further directions on 9 November 2010.

REASONS FOR JUDGMENT 1 On 26 February 2010 the Minister for Lands filed and served notices of motion in each of these proceedings. The motions seek orders to the effect that the applicants amend their application and complete all their evidence (other than in respect of extinguishment of native title) by 1 October 2010 failing which the proceedings stand dismissed without further orders (that is, a form of self-executing order in the event of non-compliance). 2 The Minister's applications need to be considered in light of the circumstances in which they are made. The Minister is a respondent in both proceedings. Proceeding No ACD 6001/2002 was commenced on 28 February 2002, following notification of a proposed mining lease over the land the subject of the application. Proceeding No NSD 6009/2002 was commenced on 7 June 2002, following notification of a proposed exploration licence over the land the subject of the application. 3 The Native Title Registrar did not accept either application for registration. 4 Both proceedings have a lengthy history before the Court. The following paragraphs refer only to those matters necessary to explain the basis of my orders in respect of the Minister's notices of motion. 5 On 23 March 2005 Wilcox J directed the applicants to file and serve expert and lay witness statements and other necessary material by 23 September 2005. 6 The Minister does not suggest that the applicants did other than their best to comply with these directions. Nevertheless, the applicants did not comply with the directions. Moreover, material contemplated by those directions remains outstanding at today's date. 7 The proceedings then came before Madgwick J throughout the latter half of 2006. On 18 July 2006, Madgwick J ordered that all "issues in the proceedings which do not concern whether any native title that might have existed in relation to the subject land has been extinguished" be tried first and separately. His Honour also directed the applicants to file and serve all material on which they seek to rely in relation to this "preliminary question" by 20 November 2006. In response to requests by the applicants, this date was subsequently extended to 20 June 2007 and then 1 July 2008. By the time the extension to the latter date was granted, the applicants also contemplated the need for filing and service of an amended native title determination application (also due by 1 July 2008). 8 The applicants did not comply with these orders. 9 The proceedings came before Moore J on 25 July 2008. His Honour ordered the applicants to file and serve the foreshadowed amended native title determination application and all material on which they seek to rely in relation to the "preliminary question" (that is, all issues in the proceedings other than extinguishment) by 14 November 2008. 10 The applicants did not comply with these orders. 11 From May 2009 the applicants sought funding to enable the preparation of the evidence required to prosecute their claims. The history of the applicants funding application is thus also relevant to the Minister's notices of motion. 12 The applicants first applied for funding from NTSCORP Limited on 22 May 2009. On 24 July 2009, NTSCORP informed the applicants that it had decided not to grant them funding assistance. The applicants, in mid-August 2009, applied for an internal review of this decision. 13 NTSCORP's internal review took some time to complete. In the meantime, the proceedings came back before Moore J for directions. Moore J directed the Minister to file and serve any application for summary dismissal of the proceedings by 26 February 2010 and listed any such application for hearing on 22 April 2010. 14 On 16 February 2010, NTSCORP decided not to alter its decision in response to the applicants' request for funding. NTSCORP notified the applicants of this decision not to provide funding to them on 25 February 2010. 15 As noted, the Minister filed and served notices of motion on 26 February 2010 seeking dismissal of the proceedings should the applicants not file and serve all evidence in respect of the "preliminary question" and the foreshadowed amended native title determination application by 1 October 2010. 16 On 21 March 2010, the applicants requested that the Board of NTSCORP review the decision to refuse funding. 17 By the date for hearing of the Minister's notices of motion - 22 April 2010 - NTSCORP's Board had not completed its consideration of the applicants' request. The Minister's notices of motion came before me on 22 April 2010. I adjourned the hearing of the notices of motion until 14 July 2010 to enable the Board of NTSCORP to complete its consideration of the funding request. 18 On 24 May 2010, the Board of NTSCORP refused to alter the funding decision. 19 On 9 July 2010 the applicants applied to the secretary of the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FHCSIA) for a review of the decision of NTSCORP's Board in accordance with s 203FB of the Native Title Act 1993 (Cth). This application was accompanied by extensive material in support of the requested review. 20 On 14 July 2010 the notices of motion again came before me for hearing. I adjourned the hearing of the notices of motion until 28 September 2010 to enable FHCSIA to complete the statutory review process. 21 On 9 September 2010 FHCSIA notified the applicants that their application for review of the refusal of funding had been rejected. 22 The notices of motion came before me on 28 September 2010. 23 The Minister pressed for the orders in the notices of motion. The applicants said that they were considering whether FHCSIA's refusal of the review application might be challenged under the Administrative Decisions (Judicial Review) Act 1977 (Cth), possibly on the ground of denial of procedural fairness. The applicants said that if they were obliged to complete their evidence they would need until 31 March 2011 to do so. According to the applicants, they should not be punished for diligently pursuing funding so that they could properly put their claims before the Court. 24 The applicants' references to them being punished for diligently pursuing their funding application are misconceived. The Minister's notices of motion have nothing to do with punishment of the applicants. They represent an attempt by the Minister to ensure that matters before the Court are capable of being progressed, heard and determined in a reasonably orderly and expeditious manner. 25 The diligence of the applicants in pursuing their funding application is also not to the point. These proceedings are not about funding. These proceedings concern the applicants' substantive claims for native title over the subject land. The applicants, having been permitted to exhaust every opportunity to obtain funding to support the making of their claims, either are or are not in a position to prosecute those claims in these proceedings. If, as the history of the proceedings suggest, the applicants are not able to do so, then it is contrary to the interest or justice to permit the proceedings to consume yet more time and resources with no real end in sight. 26 As the Minister submitted: · despite the delivery of material from time to time, the applicants have never been able to file and serve all evidence on which they wish to rely to substantiate the claimed native title rights, despite Court orders being made that they do so from March 2005 onwards; · recent amendments to the Native Title Act disclose the legislature's intention that, in common with all other applicants, applicants claiming native title rights have a responsibility to advance and resolve claims they have instituted; · the applicants' continuing failure to comply with Court orders, irrespective of the cause being an inability rather than an unwillingness to do so, involves unreasonable delay prejudicing not only the respondents, but also the due administration of justice; and · no permanent prejudice would be caused to the applicants. Summary dismissal of the proceedings for the applicants' failure to prosecute their claim would not give rise to any estoppel in subsequent properly constituted and diligently prosecuted proceedings. 27 The applicants' arguments to the contrary are not sound. I have dealt with the issues of discretion above. In short, given the history of these proceedings, all material discretionary factors weigh in the Minister's favour. Otherwise there is no "compelling reason" not to dismiss the applications within the meaning of s 94C(3) of the Native Title Act. The issues that the applicants are unable to resolve relating to the proper claim group, due to lack of funding to investigate the matter fully, is not a "compelling reason" not to dismiss the applications. To the contrary, the history of the proceedings suggests that the applicants have exhausted their attempts to obtain funding on the merits of their applications. They are left at present with the mere possibility of judicial review proceedings to challenge the validity - not the merits - of FHCSIA's funding decision. There is no basis to speculate that any different decision on the merits of the funding request will be made at any time in the future. On the applicants' own submissions, the unresolved issues about their claim will remain unresolved without funding. As the prospect of obtaining funding is now purely speculative, the unresolved issues cannot be a reason, let alone a compelling reason, not to dismiss the applications. 28 In any event, and as the Minister's submissions identified, apart from s 94C of the Native Title Act, the Court has power available to it to make self-executing orders of the kind sought in the circumstances of this case (for example, O 35A r 3(1)(c) of the Federal Court Rules). 29 In the circumstances set out above I am satisfied that it is in the interests of justice to make self-executing orders. I propose, however, to extend the time nominated in the Minister's notices of motion to 29 October 2010. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales

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