Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney-General of New South Wales

1. Pursuant to s 84(5) of the Native Title Act 1993 (Cth), Amplitel Pty Ltd as the trustee of the Towers Business Operating Trust ABN 75 357 171 746 be joined as a respondent party to the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BURLEY J: 1 By an interlocutory application filed on 18 November 2022, Amplitel Pty Ltd as the trustee of the Towers Business Operating Trust ABN 75 357 171 746 seeks orders that it be joined to the proceeding as a Respondent pursuant to s 84(5) of the Native Title Act 1993 (Cth). 2 The native title claim was filed on 29 May 2017, entered on the register of claims on 1 September 2017 and notified from then until 22 November 2018. The native title applicants oppose the application. Telstra Corporation Limited has been a party since May 2018. 3 Section 84(5) provides for persons who did not comply with s 84(3), by failing to notify the Court in writing that they want to be a party within the 3-month period after the notification day, as specified in s 66(10) of the Act, to apply to the Court to be joined as a party. Section 84(5) of the Act provides: The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 4 Section 84(5) requires that before joining a person as a party to the proceeding, the Court must be satisfied of the following three elements: (a) the joinder applicant has an interest (of the kind contemplated by s 84(5)); (b) the interest may be affected by a determination made in the proceeding; and (c) it is in the interests of justice for the Court to order the joinder sought. See Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia [2022] FCA 114 at [5] (Bromberg J). 5 Amy Carseldine, a solicitor at King & Wood Mallesons (which acts for Amplitel), gives evidence that Amplitel is a related body corporate of Telstra and that Telstra has undergone a structural reorganisation, one consequence of which is the transfer of ownership of its physical telecommunications assets that are located within the boundaries of the land and waters that are the subject of the present native title claim to Amplitel. Those assets include 18 main radio towers and 7 main radio towers and exchanges within the claim area. 6 In opposing the application, the applicants do not submit that Amplitel has no interest that may be affected by a determination made in the proceeding, but submit that it is not in the interests of justice that the joinder be permitted. They submit that there has been no reasonable explanation put forward that would justify a five year delay in seeking to join the proceedings, which would result in additional costs in serving documents on it and responding to it. They submit that the interests of Amplitel are already protected by the presence of Telstra as a party, which can make submissions on behalf of Amplitel, and that the joinder at this stage would be unfairly prejudicial to them. 7 Amplitel submits that a determination of native title rights and interests in favour of the applicant may affect the provision of telecommunication services via its assets. It submits that the interests claimed by Amplitel are not already protected by the interests claimed by Telstra, because of the transfer of the assets described above and because Amplitel and Telstra are separate entities. 8 In my view the applicants are correct to accept that Amplitel is a person whose interests may be affected by a determination in the proceedings. The real question in the application is whether any of the discretionary factors applicable in the context of the s 84(5) tend in favour of or against the joinder. In that respect, in Wilson on behalf of the Wirangu People v South Australia [2022] FCA 829, O'Bryan J said at [19]: In assessing where the interests of justice lie, regard should be had, among other things, to the objects and purposes of the Native Title Act and the overarching purpose of civil practice and procedure expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) which includes the just determination of disputes efficiently, in a timely manner, and at a cost that is proportionate to the importance and complexity of the matters in dispute: Kum Sing at [17]. A relevant consideration to the interests of justice is whether those seeking to be joined have provided a satisfactory explanation for any delay connected with their application and the prejudice that may be caused to existing parties to the proceedings if they are joined as a party: Barunga at [163] and [219] per Gilmour J; Jacob v State of Western Australia [2014] FCA 1106 at [4] and [51] per McKerracher J; Allen on behalf of the Nyamal People #1 v State of Western Australia [2018] FCA 320 at [56] and [75] per Barker J; Blucher on behalf of the Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [23]-[27] per Rangiah J; Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300 at [9]-[12] per Reeves J. 9 Other factors that may be taken into consideration is whether the interest can be protected by some other mechanism; Harrington-Smith at [73]; whether the applicant for the determination would be significantly prejudiced if the joinder is granted and whether there has been any unexplained delay in bringing the proceedings; Harrington- Smith at [59]. 10 In the present case, the reason for the late joinder application has been explained. Amplitel was not until recently the owner of assets within the claim area such that it could advance any interest. While it is true that the affidavit of Ms Carseldine does not, when it could (and should) have disclosed more specifically when the transfer of assets took place, I accept that the description given by Ms Carseldine indicates that a long period has not passed since the transfer. This has the consequence that Amplitel could not have applied to be a party during the notification period. As to prejudice to the applicants, it is likely that the additional costs arising as a result of the joinder are minimal. The same solicitors act for Telstra as well as Amplitel with the same address for service. It is difficult to see that any other form of prejudice will arise. Whilst the applicant submits that the joinder will occasion delay, it is far from apparent how that will arise. The applicant has not yet filed its expert connection report and the State has not undertaken its tenure analysis. In addition, the applicant has foreshadowed that the contents of its connection report may result in amendments to the claim itself. 11 In short, the regrettable fact is that despite being on foot since 2017, the claim is in its early stages. Amplitel has a clear interest in the proceedings. It is in the interests of justice that the application be allowed. I so order. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.