13 What Mr Wharton has to say about the deficiencies in the notice convening the meeting seems to be supported by what Mr Preston, counsel for Mr Wharton, has to say in his affidavit. He was, in fact, invited to attend this meeting, although, as his affidavit indicates, he was excluded from a large part of the proceedings, though he attended at the meeting venue. He exhibits a copy of the notice he received inviting him to the meeting. It was sent to him by the Corporation and it contains no indication to recipients of the notice of what is the business to be transacted at the meeting.
14 Now, as I have said, joinder is sought by the Corporation under s 84(5). A question of the Court's power to join the Corporation at this time is raised. This is so notwithstanding the fact that by force of ss 66(3)(a)(i) and 84(3)(a)(i) the relevant representative body has a statutory right to become a party to a native title claim, if it acts within the time referred to in s 84(3)(b) for responding to the notice of the making of the claim which it is entitled to receive from the Registrar. That question arises because of the decision of Emmett J in the matter of Munn v State of Queensland [2002] FCA 78 given on 6 February last. In pars [10] to [19] of his Honour's reasons, he explains why he considered there was an absence of power to join the present applicant as a party in the proceedings before him after expiry of the period of notice referred to in s 84(3)(b) of the Act.
15 Mr Maurice, counsel for the Corporation, challenges the correctness of this decision and there is substance, in my opinion, in much of what Mr Maurice has to say. However, it is unnecessary, in the view I take of things, for me to express my own views on whether s 84(5) is limited in the manner suggested by Emmett J in his decision so as not to authorise joinder of a representative body under its provisions at any time.
16 In my view, this application must be dismissed on discretionary grounds, assuming there is power to join the Corporation under s 84(5).
17 It is true, as Mr Maurice has forcefully submitted, that the applicant Corporation has important statutory functions to perform in relation to the making and support of native title claims. See s 203B, and following, of the Act. But joinder has not been sought by the Corporation simply because it has these important statutory functions to perform. Quite the contrary. The joinder is specifically supported by the evidence of Mr Bowden, to which I have referred.
18 There is a total absence of evidence before me to suggest that joinder is necessary to enable the Corporation to properly perform any of its statutory functions. In other words, there is a total absence of any evidence to suggest that, though this claim has been on foot since 1996, there is now some situation that has emerged which would impede the Corporation from performing its statutory functions if it is not able to be joined as a respondent party.
19 Mr Maurice says that if joinder were permitted, it would be in a situation of being able to monitor and oversee the conduct of the proceedings, to obtain information, to be served with documents and the like. All that may be true, but there is no suggestion that the Corporation has sought and been refused information necessary to enable it to perform its functions from anyone associated with the litigation, including Mr Wharton.
20 There is, I think, substance in the submission by Mr Preston that joinder of the Corporation in the circumstances revealed by the evidence before me, far from facilitating the Corporation in performing its functions, as Mr Maurice suggests on general grounds unsupported by evidence, may significantly impede the Corporation from performing its functions.
21 The evidence indicates, as I have already outlined, that the Corporation is seeking joinder in response to what appears, from all the evidence before me, to be properly described as a request by one faction that has developed within the claimant group to take effective control of the litigation out of the hands of Mr Wharton and the faction that would appear to be aligned with him, and in effect exercise that control of litigation on behalf of the faction that carried the meeting of 7 December. The Corporation's dispute resolution functions, under s 203BF, would seem, in my opinion, on the evidence before me, likely to be put at risk of proper execution if I were to accede now to this application. It seems to me difficult for the Corporation properly to perform its functions under s 203BF if it seeks, as it does on the material it has chosen to put before me, now to be joined in order to align itself with but one faction within the claimant group. Its functions under s 203BC could, in my opinion, hardly be advanced by joining, it in the circumstances revealed by the evidence, where there is this factional rupture within the claimant group.
22 I emphasise that I am deciding this case on the evidence put before me. I invited Mr Maurice, in response to some information he conveyed to me from the bar table about a further meeting that the Corporation was planning to convene of members of the native title claimant group, to seek an adjournment of the proceedings. But he informed me that his instructions from his client were to proceed and ask for the motion to be determined on the material before me.
23 That I will do and, for the reasons given, I dismiss the notice of motion.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.