Jerrungarugh People - Brown v NSW Minister for Land & Water Conservation

EX TEMPORE REASONS FOR JUDGMENT 1 In this matter, on 9 June 2000, Lindgren J made an order, amongst other things, that the applicant, Mr Brown, file and serve by 21 July 2000 an affidavit satisfying the terms of s 62(1) of the Native Title Act 1993 (Cth) ("the Act"). That order was not complied with. The matter was before me on 8 August 2000, when leave was granted to Mr Brown to be represented by Mr Moore. It was made clear on that occasion, both by OTHER parties and myself, that steps needed to be taken to ensure that the application was put into proper form and that the queries concerning the validity of the application ought be set at rest. I set aside time successively on 23 August and 3 October for that to be done. 2 For various reasons, which I need not go into at the moment, neither date was utilised for that purpose and, indeed, Mr Brown was not present or represented on either occasion. On 3 November 2000, I indicated that I would hear today any application which any party wished to make. Pursuant to that, the second respondent has filed and served a notice of motion, supported by an affidavit, that the claim be dismissed. Mr Brown, despite having been served with the notice of motion, does not appear in Court today. 3 The application is made on several bases. Rather than take up unnecessary time now, it can be taken that the written submissions of the second respondent, which were provided in advance, can be taken in effect to be incorporated in this judgment, although they will not be physically incorporated. I have also had the advantage of hearing submissions from counsel for the first respondent. He had provided me with submissions on an earlier occasion. 4 It seems to me that this is an appropriate case for an order to be made dismissing the proceedings. Various matters are relied upon to support the application before me today. The first is that the application has been filed without the information necessary to allow it to be determined who are the members of the native title claim group. When taken together with the issue of authority, which has been raised on various occasions in this matter and most recently in the affidavit which has been filed in support of this motion, this issue is the most important. Identification of the members of the native title claim group and the authority of the person bringing the proceedings is of vital significance to the proper determination of an application of this kind. 5 The fact that under the current Native Title Act the requirements need to be more clearly satisfied at the commencement of the proceedings does not mean that they are not ultimately of equal significance for the hearing and determination of an application commenced under the Act as it stood previously. Mr Brown has been on notice for some time that there is a serious challenge to his standing, and he has simply not responded to that in any way. I am satisfied that the failure to identify the native title claim group and the failure to give any evidence at all which would support his authority to speak for the native title claim group is a significant deficiency. 6 It seems to me that the other grounds which are raised, namely, the inadequate description of the native title rights and interests, and the failure to file a draft determination of native title, add force to the argument that the Court does not have before it in this case material which is apt to enable an application to proceed in an orderly fashion. 7 There are special provisions under the Act for striking out of proceedings but they do not derogate from the general power of the Court to strike out proceedings if they are embarrassing and doomed to failure. Wilcox J in Moran v Minister for Land and Water Conservation [1999] FCA 1637 referred to that principle and I see no reason to question the application of O 20 of the Federal Court Rules in circumstances such as the present. I have also been referred by counsel for the applicant on this motion to the decisions of Madgwick J in Korewal People - Longbottom v New South Wales Minister for Land & Water Conservation (No 1) [2000] FCA 1229 ("Korewal People"), Korewal People - Longbottom v New South Wales Minister for Land & Water conservation (No 2) [2000] FCA 1237 and Eora People, Brown v New South Wales Minister for Land and Water Conservation [2000] FCA 1238. In my opinion, the approach by his Honour supports the applicant's case here. I see no reason to question the manner in which his Honour approached those matters. The present case is, in a sense, clearer because there is no application before me for any amendment to cure any of the defects and no evidence has been put before the Court to cure any of the defects which have been alleged. 8 It is fundamental to my approach to this matter that nothing should be done to stand in the way of pursuit of a proper application of this character for land or waters in this area. The dismissal of the present proceedings will not create any estoppels or other difficulties in the pursuit of such a claim. Indeed, my own view is that the second respondent is correct in submitting that it is better to ensure that an application in proper form is pursued rather than persisting on the basis of a flawed application. It performs no useful function at all to enable the procedures under the Act to go ahead, involving the resources which they do and the enormous delays that they do, in relation to an application which may simply have no chance of success in the way it is framed or brought by the person that it is. It is, indeed, entirely possible that the existence of such an application and all the concomitant proceedings, mediations and so on distract those who can properly bring an application from doing so, leading to unnecessary delay, as well as much wasted time, effort and cost. 9 In all the circumstances it seems to me that the order which is sought should be made, and I do so. The order of the court will be that the proceedings are dismissed, and no order will be made as to costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.