Donnelly v Registrar of National Native Title Tribunal

REASONS FOR JUDGMENT 1 The applicant ("Mr Donnelly") seeks leave to appeal from an interlocutory order dated 19 September 2000 of Hely J, dismissing an earlier motion brought by notion of motion filed by Mr Donnelly on 1 September 2000. 2 The background is set out in his Honour's reasons for judgment. The Native Title Registrar removed details of Native Title claim NC 97/21 from the Register of Native Title claims. The applicants named in that application, which had been lodged with the National Native Title Tribunal on 29 July 1997, were Albert Robinson, Andrew Donnelly and Colleen Donnelly. As a result of cl 11(9) of Part 4 of Schedule 5 to the Native Title Amendment Act 1998 (No 97, 1998) or s 190(3)(b) of the Native Title Act 1993 (Cth) as amended by that Act, the Registrar was required to remove those details if the claim did not satisfy all the conditions of ss 190B and 190C of the principal Act as amended. The Registrar decided on 29 June 2000, that the claim was not accepted for registration because several conditions laid down in those sections were not, in the Registrar's view complied with. 3 By the application that commenced this proceeding on 12 July 2000, Mr Donnelly seeks review of the Registrar's decision not to accept the claims for registration. 4 By the motion dealt with by Hely J, Mr Donnelly sought mandatory interlocutory relief in the form of an order that the Registrar restore particulars of the claim to the Register. 5 On the present motion for leave to appeal, the first and third respondents submitted to such order as the Court might make save as to costs. The second respondent ("the Minister") contested the motion. 6 The motion for leave to appeal was part heard on the morning of 21 November and stood over to 4 December for the hearing to be concluded. But in the meanwhile, in proceeding NG 6073 of 1998, Hely J granted an application by Mr Donnelly for leave to amend the underlying native title determination application (under the amending Act, application NC 97/21 that was pending as at 30 September 1998 became application NG 6073/98 in this Court: cf amending Act, Schedule 5, Part 3, cl 5 and cl 6). 7 In my opinion, the application for leave to appeal should be dismissed simply because the correctness of the decision of Hely J is not attended with sufficient doubt to warrant the attention of an appellate court. I will, however, refer to two further matters. 8 First, the granting of leave to amend the underlying native title determination application renders the present application for leave to appeal futile. The reason is that it is open to Mr Donnelly to amend the native title determination application in order to overcome the non-compliances identified by the Registrar and once the amendment is effected, it will no longer be possible for particulars of the existing unamended application to be restored to the Register. On the renewed hearing before me on 4 December, I asked counsel for Mr Donnelly, whether he could suggest any reason why the application for leave to appeal was not futile, and the reality is that he could not. For this further reason, I decline leave to appeal. 9 It is conceivable that the amended claim will also run into difficulty in terms of satisfying the registration test, but that can be left to another day. The Court will not reconsider the matters dealt with by Hely J for the purpose of advising Mr Donnelly how best to amend. 10 The second matter to which I referred relates to one of the grounds of non-compliance. This is the "overlapping claims" point. Subsection 190C(3) provides, in substance and relevantly, that the Registrar must be satisfied that no person included in the native title claim group for the current application was a member of the native title claim group for any previous application covering the whole or part of the area covered by the current application, where an entry relating to the claim in the previous application was on the Register when the current application was made. 11 In his reasons for decision dated 29 June 2000, the Registrar's delegate dealt at some length with the issue arising under subs 190C(3). He concluded that one or more of the present three applicants was also included in the native title claim group for application NC 96/25 or NC 97/19. 12 The argument put for Mr Donnelly is that the Registrar was not entitled to find that the current application fell foul of subs 190C(3) because the Registrar should have known from correspondence that Albert Robinson and Andrew Donnelly had expressed a wish to have their names removed from NC 96/25 (now NG 6042/98 in this Court) and NC 97/19 (now NG 6071/98 in this Court). 13 Hely J dealt with the point in par [20] of his reasons for judgment. With respect, I think it is clear, beyond argument, that what his Honour said there is correct. The point that I would make for the benefit of Mr Donnelly is that he would be well advised to ensure that he and Mr Robinson cease to be included in the native title claim group for each of the earlier applications or for the present application before the final form of the proposed amended application in this matter is settled. 14 For the above reasons the motion brought by notice of motion filed on 19 September 2000 seeking leave to appeal will be dismissed. 15 [The Minister sought costs.] 16 Section 85A of the Act provides as follows: "(1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs." I do not think the policy of s 85A is that no matter how much litigation related to the Act a party may choose to engage in, that party is immune from all sanctions of costs. 17 It seems to me appropriate that Mr Donnelly pay the Minister's costs of the motion for leave to appeal. Mr Howard of counsel has said everything that could be said in favour of the motion for leave to appeal, but in my view the case clearly does not warrant the granting of leave. Indeed, the fact that some wastage of time and money has been caused by the present application is indicated by the fact that Mr Donnelly has, in the meanwhile, obtained leave to amend the application - a far more productive course for him to follow in my respectful opinion. 18 Accordingly, the applicant will be ordered to pay the costs of the second respondent of the motion for leave to appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.