discussion
15 The Minister's submission about the essential character of the present application must be accepted. For this reason, the references made by the applicants to ss 190F(6) and 94C of the Native Title Act are of little weight.
16 The power to set aside or vary orders before entry is found in O 35 r 7(1) of the Federal Court Rules, which provides that:
The Court may vary or set aside a judgment or order before it has been entered.
17 The principles directly relevant to the exercise of this power were set out in the Minister's written submissions, where it was said that:
The power is to be exercised judicially (Allstate Life Insurance Co v ANZ Banking Group Ltd (No 18) (1995) 133 ALR 667 at 675) and with caution (Australian Fisheries Management Authority v PW Adams Pty Limited (No 2) (1996) 66 FCR 349 at 354). It is an indulgence, not the right of a party (Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 (quoted in Australian Fisheries)). Even where there has been a miscarriage of justice the jurisdiction to set aside a judgment or order should be exercised with great caution having regard to the importance of the public interest in the finality of litigation (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303, 317; Re Wallace; ex parte Wallace [1997] FCA 388).
18 Against the background of these principles, it is first necessary to recognise a potential inconsistency in the applicants' position: in short, the delay which the applicants submitted will seriously prejudice them is in large measure the result of their own conduct of the proceedings. In other words, the applicants' own delay led to the proceedings being dismissed in October 2010. Yet the prejudice the applicants now identify is due to delay which they themselves could have avoided. This history of the proceedings discloses the extraordinary delay involved.
19 Although the applications were brought in 2002, it was not until 2007 - some five years later - that the applicants, according to the chronology provided to me at the hearing, applied to NSW Native Title Services Ltd for financial assistance. Moreover, it was the applicants who sought an order in May 2009 (referred to above) which would have effectively prevented the matters from moving forward until the applicants obtained funding. The pursuit of funding was also the reason for a number of adjournments sought by the applicants between April and September 2010 (see Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales (No 2) [2010] FCA 1477 at [11]-[23]). It is therefore evident that, until the making of the October orders, the applicants chose to focus their energies on obtaining financial assistance even at the price of significant delays to the progress of the proceedings. This remained the case even after July 2006, when the applicants were first ordered to file and serve the preliminary question evidence (see below).
20 Implicit in this course is the applicants' recognition of the importance of adequate funding to the successful conduct of proceedings such as these. It is therefore relevant to note that, as at the date of the hearing of this motion, no financial assistance had been secured despite concerted efforts made over a period of more than three years.
21 It is also relevant to observe that, despite the 10-12 volumes of evidence now collated by the applicants and the concerns they have expressed regarding the effects of the passage of time, the applicants estimate that it will take between 18 months and 2 years for a fresh application to be brought before the Court. Although based on the pace at which these matters have progressed to date this estimate may not be unrealistic, it again highlights the extent to which the applicants' own delays have contributed to the potential prejudice on which they now rely.
22 Turning to the likelihood of the applications passing the registration test, it is sufficient to note that the Minister takes a different view from the applicants. In written submissions the Minister pointed to a number of respects in which the amended applications were said to be irregular, including the fact that the amended applications do not in terms seek a determination of native title. Rather, they seek that:
Determination of Native Title [be] deferred, because [the applicants] are dealing with letters to the executive government of NSW and the Commonwealth Government of Australia in relation to jurisdictional matters.
23 These "jurisdictional matters" appears to relate to the applicants' position that:
the Australian court[s] do not have any authority to make decisions on our land matters given the evidence recently filed.
24 Elsewhere in the amended applications, the applicants record that:
Our submission is that this matter is stood over until the matter of our alien status, jurisdiction and our sovereign status is determined upon by judgement or opinion from superior courts, such as the International Court of Justice.
25 Whatever the terms of the amended applications, it is apparent for the reasons given above that the likely outcome of the registration test is not capable of weighing materially in the applicants' favour.
26 Finally, the applicants' apparent lack of appreciation that orders deferring the preparation of evidence had not been made in August 2009 does not weigh in their favour. It again exposes the fact that the applicants elected to focus their energies on obtaining funding rather than prosecuting the proceedings (funding, as noted above, has still not been obtained). For present purposes I confine myself to observing that, on 18 July 2006, Madgwick J ordered the applicants to file and serve the preliminary question evidence by 20 November 2006. This date was subsequently extended to 20 June 2007 and then to 1 July 2008 at the request of the applicants. The applicants did not comply with the amended orders. Nor did they comply with the subsequent orders of Moore J, made on 25 July 2008, which extended the date for the filing and service of the preliminary question evidence to 14 November 2008. Nor still did they comply with the October orders, which extended the relevant date to 29 October 2010.
27 In these circumstances, even if the applicants' other submissions are accepted to their fullest extent, they are not sufficient to persuade me that the proceedings should be reinstated. This conclusion is strengthened by the fact that, as noted above, the proceedings have now stood dismissed since 29 October 2010 despite two previous attempts to have them reinstated. It is further reinforced by the importance of the public interest in preserving the finality of decisions of this Court.
28 Taken together, these reasons lead me to conclude that I should dismiss the applicant's notice of motion in each proceeding. Furthermore, in light of the circumstances outlined above, I consider it appropriate to order that the applicants not be permitted to make a further application - by notice of motion or otherwise - to reinstate these proceedings without leave of the Court.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.