Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia

Consideration and Determination 13 The Court's power to amend orders that have been entered includes the following power conferred by the 2011 FCRs as follows: 39.05 Varying or setting aside judgment or order after it has been entered The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or (b) it was obtained by fraud; or (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in a judgment or order; or (h) there is an error arising in a judgment or order from an accidental slip or omission. 14 The applicants rely on r 39.05(f) of the 2011 FCRs in respect of the proposed variation to add reference to additional apical ancestors. The applicants rely on r 39.05(g) and/or (h) of the 2011 FCRs for the proposed correction of paragraph (a)(xxxvi) of Schedule 5 of the determination annexed to the Part A Orders. 15 In Nyoni v Pharmacy Board of Australia [2018] FCA 1707, McKerracher J at [15] identified the following principles as applicable to the setting aside or variation of an entered order or judgment under r 39.05 of the 2011 FCRs: In the r 39.05 context, this Court has identified the following principles as relevant: (a) the scope of the power to vary or set aside an order or judgment after entry is more circumscribed than that provided for in relation to the preentry situation. It should be exercised with caution and in exceptional circumstances, mindful of the overarching principle of the finality of litigation: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 per Gordon J (at [6] and the authorities therein cited); (b) the discretion to vary an order is not confined, but must be exercised judicially and the Court must have regard to all the evidence and arguments before it at the time of the application: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76 per Yates J (at [68]); (c) the power conferred must be exercised in a way that best promotes the overarching purpose identified in s 37M of the [Federal Court of Australia Act 1976 (Cth)], of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible; and (d) the Court must also consider the rights and interests of third parties. Orders may be varied or set aside where the party in whose favour the order was made consents, provided that doing so will not detrimentally affect the rights or interests of third parties: Australian Securities and Investments Commission v Yanda/ Gold [2003] FCA 77 per Merkel J (at [23]); Perre v Apand [2004] FCA 1220 per Selway J (at [10]-[11]).

Application under r 39.05(f) 16 Rule 39.05(f) of the 2011 FCRs reflects a long-standing feature of the Court's rules. The rule mirrors the previous Federal Court Rules 1979 (Cth) O 35, r 7(2)(f) (1979 FCRs), in the latter's form from its inception. The jurisdiction to set aside or vary a judgment or order which has been entered is exercised with caution where the interests of third parties may be affected. In Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45 at 50, Brennan J (as his Honour then was) observed: The better view appears to be that the court has jurisdiction to set aside a regular judgment if the parties to the judgment consent to the court doing so. But it further appears that the court should decline to make the order if a third party would suffer particular injury by the making of the order. 17 In Lovett v State of Victoria (No 4) [2011] FCA 931; 195 FCR 198, North J considered an application to amend a determination of native title based on, amongst other things, the provision of the 1979 FCRs equivalent to r 39.05(f) of the 2011 FCRs. North J concluded that the requirements of the provision were satisfied by the party in whose favour a determination was made consenting to the variation in question. His Honour also considered whether the amendment of a determination should proceed under s 13(1)(b) of the NT Act, with a consequent requirement for a "more onerous" notification procedure. His Honour stated at [8]-[9]: 8. It is open to the Court to make orders amending the Part A determination under either s 13 of the [NT Act] or O 35, r 7 of the [1979 FCRs]. The choice between the two will depend upon the circumstances in which the application is made. The question which needs to be addressed by the Court is whether the legislature intended that the fulsome notification required by the Act be provided in circumstances such as the present, or whether the procedure under O 35, r 7(2)(f) and (3) would be regarded as appropriate in the circumstances. 9. Given the nature of the amendments sought in the present case, and the consent of both the applicants and the parties whose interests might be affected, no useful purpose would be served by requiring the full notification process under ss 13, 61, 63, and 66 of the [NT Act] to be followed. 18 I accept the applicants' submission that the variation by which they seek to add specified apical ancestors to the description of native title holders engages r 39.05(f) is relevantly similar to that considered by the Court in Lovett, and accordingly the procedure set out in s 13(1)(b) of the NT Act is not required. That submission is supported by the following: (a) consent to seek the variation for each proposed additional apical ancestor was given by resolution of the common law native title holders attending properly notified group meetings; (b) those persons, together with the applicant of each native title determination application for which the Parts A-C Orders were made, are the "party in whose favour" the orders were made within the meaning of r 39.05(f); (c) the applicants' proposed variation of the Parts A-C Orders avoids the potential injustice of incorrectly recording the identity of native title holders in the determinations of native title annexed to those orders, or a divergence between the description of native title holders in Wajarri Yamatji native title determinations made to date and those made in pending applications; (d) the State of Western Australia has consented to the proposed amendments and the State has agreed to a similar description of native title holders in the Part D and Part E Minutes of proposed consent determination filed on 18 June 2021; (e) no other respondent party has objected to the orders sought; and (f) no third party interest will be adversely affected by the amendments sought by the applicants.

Application under r 39.05(g) or (h) 19 I accept the applicants' submission that the anomaly identified in paragraph (a)(xxxvi) of Schedule 5 of the determination annexed to the Part A Orders is either a clerical error, or a slip, which may be appropriately corrected under r 39.05(g) or (h). The amendment would bring the determination annexed to the Part A Orders into line with those annexed to the Part B Orders and the Part C Orders.

Conclusion 20 For these reasons, the orders sought in the interlocutory application will be made. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Griffiths.