Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC

1. Order 5 of the orders made on 15 June 2020 be vacated.
2. On or before 4 pm on 29 January 2021, the respondent is to file and serve any affidavits on which it proposes to rely in the proceeding.
3. On or before 4 pm on 26 February 2021 the applicants are to file and serve any affidavits in response on which they propose to rely in the proceeding.
4. On or before 4 pm on 5 March 2021, the parties inform the Court by joint email of: (a) The estimated length of the trial; and (b) The parties' available dates for trial in March, April and June 2021.
5. There be no order as to the costs of the respondent's interlocutory application dated 30 November 2020. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MORTIMER J: 1 This proceeding concerns a dispute over the applicants' potential membership of the respondent, the Karlka Nyiyaparli Aboriginal Corporation RNTBC, which is a Prescribed Body Corporate holding native title on trust for the Nyiyaparli People, pursuant to the consent determination made by this Court in Stock on behalf of the Nyiyaparli People v State of Western Australia (No 5) [2018] FCA 1453. 2 Having been refused membership after an application, in their originating application, the applicants seek declaratory relief to the effect that they are "'Nyiyaparli People' as that term is defined in the Respondent's rule book and the Nyiyaparli determination". 3 The respondent filed an affidavit of Nicholas Preece, the CEO of the respondent, affirmed on 18 May 2020 explaining (through annexures to the affidavit) the respondent's then position on the membership refusal. Mr Preece deposed to a decision of the Board, to "take the question of whether or not the Applicants are Nyiyaparli People to the next meeting of the Nyiyaparli People", which at the time of the Board's decision was scheduled for "May or June of 2020". However Mr Preece deposed that because of the circumstances arising from the COVID-19 pandemic, the requisite face-to-face meeting was unable to be scheduled as planned. He deposed that: The Respondent's intention is to convene such a meeting as soon as those restrictions are lifted and for that meeting to consider the question whether the Applicants are Nyiyparli People and are eligible for membership of the Respondent. 4 On 15 June 2020 the Court made orders, with the agreement of senior counsel for each of the parties, for the filing of affidavit material by each party for the purposes of trial, and for the conduct of a mediation. The meditation was ordered to be completed by 28 August 2020. On 8 July 2020, and by consent, that date was varied to 23 October 2020. 5 Materially to the present interlocutory application, the effect of this variation was that the respondent was required to file and serve its affidavit material four weeks after 23 October 2020. A further case management hearing was to be scheduled after the respondent's affidavits were filed. 6 The respondent did not comply with the amended order. By an interlocutory application filed on 30 November 2020, the respondent sought to vacate entirely the Court's orders requiring it to file and serve affidavits. Instead, it sought to vary the 15 June 2020 orders to the effect that there be another case management hearing. 7 The interlocutory application was supported by an affidavit of Kelsi Forrest, sworn on 20 November 2020. In that affidavit Ms Forrest deposed to the fact that a meeting of the Nyiyaparli common law holders was scheduled for 2 December 2020, and that the applicants' claim to be entitled to be admitted as common law holders (and members of the respondent) was to be considered at that meeting. She also deposed (at [9]): For the reasons set out in the letter dated 19 May 2020 (KMJF1), the Respondent is not presently in a position to file responsive affidavits as the community meeting has not taken place. Further, the jurisdictional basis for the application is unclear, in particular, it is unclear as to whether the applicant seeks a merits based review of the decision of the Respondent, and if so on what basis, or has commenced proceedings by way of a pre-emptive challenge to the outcome of a meeting which has yet to take place. 8 The last sentence was not a matter raised by senior counsel at the case management hearing, and has not otherwise been raised by the respondent to this point in the proceeding. 9 The applicants' position on the interlocutory application, conveyed to the Court through the respondent's legal representatives, was that the outcome is a matter for the Court, and they did not seek otherwise to be heard on the application. 10 It can be accepted that the circumstances surrounding the COVID-19 pandemic in Australia have made face-to-face meetings difficult, and often impossible. Thus, I accept the respondent's evidence about the reason for the meeting being rescheduled. 11 However, that does not explain why the respondent should be relieved from filing its affidavits, which is what it had agreed to do. The mediation in this matter has, I infer, not been successful, as there have been no orders filed disposing of the proceeding one way or another. No doubt the view taken by the common law holders at the 2 December 2020 meeting will affect the resolution of the proceeding, one way or the other. However, the proceeding has been on foot since April 2020, no trial date fixed and no preparatory steps have been taken by the parties. 12 I see no basis for the respondent being relieved from its obligation to file any affidavit material on which it proposes to rely. In the absence of any notification to the Court that the matter has resolved, I see no basis to put the parties, in particular the applicant, to the further cost of a case management hearing unless and until it is clear that the evidence on which the trial is to proceed has been filed. 13 The applicants have not filed any further affidavit material pursuant to the 15 June 2020 orders. Any such affidavits were due to be filed by 6 July 2020. The applicants agreed to that date. They filed nothing. I would ordinarily have inferred that they are prepared to move on the affidavit of Steven Dhu filed with the originating application. However, the development to which I refer at [14] below suggests that is not the case. 14 On 4 December 2020, after the parties had been informed the Court would decide the interlocutory application on the papers (to which the parties had agreed), and after the applicants had failed to indicate when asked that they wished to be heard on the interlocutory application, the applicants communicated again with the Court. In this second communication the applicants indicated that the common law holders at the 2 December 2020 meeting had not agreed to admit the applicants to the respondent. The legal representative for the applicants informed the Court the applicants therefore now wished to file further affidavit material, and proposed a timetable which would not see their material filed until the end of February 2021. 15 That is not acceptable to the Court. This matter has been delayed and the parties have not acted in accordance with s 37M of the Federal Court of Australia Act 1976 (Cth). The respondent will be ordered to file and serve any affidavit material on which it proposes to rely, allowing further time because of the delays in holding the meeting of the common law holders, but otherwise reflecting the intention of the original orders to which the parties had agreed. The applicant will be given an opportunity to respond, but their opportunity to file further affidavits in chief was not taken up in accordance with orders to which they had agreed. The parties will then be required to indicate trial dates. Any further proposed delay of the progress of this proceeding will need to be justified on affidavit, and an interlocutory application filed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.