Malay v State of Western Australia

INTRODUCTION AND BACKGROUND 1 On 24 May 2010, two applications for determination of native title under s 61 of the Native Title Act 1993 (Cth) (the Act) were filed by Templeton Knight Lawyers, on behalf of John Malay, Eileen Malay, Kevin Malay, Joan Malay, Maria Malay, Norma Malay, Beverley Malay and Lindsay Malay, as the Jurnall Gidja native title claimants. 2 The first application (Jurnall Gidja #1), covers an area of land and waters, being a portion of Mabel Downs station, located south east of Warmun, in the Kimberley region of Western Australia. 3 The second application (Jurnall Gidja #2) covers an area of land and waters to the north of Jurnall Gidja #1, including Bedford Downs station and portions of Violet Valley Aboriginal Reserve and Bow River Station, located in an area due west of Warmun. Except with respect to particulars identifying external boundaries and maps, the contents of the schedules to each application are in the same terms. 4 Copies of the applications were given to the Native Title Registrar, pursuant to s 63 of the Act. On 6 August 2010, a delegate of the Native Title Registrar decided not to accept the applications for registration pursuant to s 190A of the Act. In each case, the delegate concluded that not all of the conditions in s 190B of the Act were satisfied. In particular, the applications did not meet the requirements of ss 190B(2), 190B(5)(a), (b) and (c), 190B(6), 190B(7) and 190C(4). 5 On 20 September 2010, a native title determination application was filed by Peggy Patrick and others on behalf of the Yurriyangem Taam native title claim group. This application (WAD 268/2010) covers part of the area covered by the external boundary of Jurnall Gidja #2. The Yurriyangem Taam application is represented by the Kimberley Land Council Aboriginal Corporation (the KLC) and was accepted for registration on 29 October 2010. 6 Pursuant to s 66(3) of the Act, the Native Title Registrar gave due notice of Jurnall Gidja #1 and Jurnall Gidga #2 for the period commencing on 15 December 2010 and ending on 14 March 2011. On 22 March 2011, the District Registrar made an order joining the KLC, being the native title representative body recognised under the Act, as a respondent party to Jurnall Gidja #1. On 23 March 2011, the District Registrar made an order in similar terms in respect of Jurnall Gidja #2. 7 At the regional directions hearing held on 15 March 2011 there was no appearance for the applicant in either matter, whereupon the Court made the following orders: 1. Within 28 days the applicant file and serve submissions to show cause why the application ought not be dismissed pursuant to s 190F(6) of the Native Title Act. 2. The Registrar of the Court write to the applicant or their solicitors informing them of the above order. 3. The directions hearing be adjourned to 5 September 2011 at 9.30 am. 8 On 22 March 2011, a Deputy District Registrar of the Court wrote to Templeton Knight Lawyers in accordance with the terms of the orders made on 15 March 2011 enclosing with the letter sealed copies of the orders. The envelope in which this correspondence had been sent in the mail was returned, unopened, on 30 March 2011. On that day the Deputy District Registrar wrote another letter sent by facsimile to Templeton Knight Lawyers, enclosing copies of the correspondence of 22 March 2011 and enclosures. Later that day, the Deputy District Registrar telephoned Templeton Knight Lawyers and spoke with the principal of the firm, Mr Milder, who confirmed receipt of the correspondence. 9 On 8 April 2011, Templeton Knight Lawyers filed submissions in Jurnall Gidja #1, referring to difficulties in obtaining instructions due to the evacuation of residents from Warmun following damage to all of that community's houses caused by cyclonic activity. As a consequence, it was stated that a meeting of claimants that had been planned for 11 and 12 March 2011 at Warmun was cancelled. The submissions also referred to a meeting held between some members of the applicant group and a Mr Rammell Peters and a Mr Patrick Mung at the end of March in Kununurra. It was stated that the latter persons are "senior elders and applicants of the overlapping claim". Attached to each submission was a letter addressed to a Member of the National Native Title Tribunal, signed by Mr Mung and Mr Peters. It was submitted that this statement from Mr Mung and Mr Peters was in support of Jurnall Gidja #1. The submissions concluded by requesting a further period of 3 months "to enable the gathering of the necessary information for the Court to enable the parties to commence mediation". On 13 April 2011, submissions in the same terms were filed in Jurnall Gidja #2. 10 At the adjourned directions hearing held on 5 September 2011, Mr Milder appeared by telephone for the applicant in each matter. Mr Milder explained that he was continuing to experience difficulties in obtaining instructions and was unsure by when he would be in a position to do so. Notwithstanding this, he pressed for orders referring each application to mediation. No other party supported this course and, in each matter, the Court made the following orders: 1. Any respondents represented in Court today are to file and serve any submissions in relation to the disposition of the application in relation to s 190F(6) of the Native Title Act 1993 (Cth) on or before 3 October 2011. 2. Any party wishing to provide submissions in response is to do so by 31 October 2011. 3. Each party has liberty to apply. 4. The directions hearing be adjourned to 12 March 2012 at 9.30 am. 11 On 3 October 2011, the KLC filed submissions in relation to the disposition of each application under s 190F(6) of the Act. No other party, including the applicant, filed any responsive submissions by 31 October 2011, or thereafter. 12 On 9 March 2012, in each matter, Templeton Knight Lawyers filed a notice of solicitor ceasing to act, in accordance with R 4.04(3) of the Federal Court Rules 2011 (Cth). Each notice stated that the last known residential or business address of the applicant was: Desert Management Pty Ltd of Level 3, 642 Murray Street, West Perth, Western Australia 6005. 13 On the morning of 12 March 2012, prior to the scheduled directions hearing, my attention was drawn to an email communication sent to the Registry at 10.30 pm the previous Friday, by the Managing Director of Desert Management Pty Ltd, stating as follows: I understand Templeton Knight have resigned their commission with the two JG native title claims. I understand that there is a Directions Hearing on Monday 12 March. I will now commence the process of obtaining new solicitors for these two claims, and I request that the court allow a period of about 4 months to enable this to take place. 14 Section 84B of the Act provides that a party to a proceeding, such as the applicant, may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding. Following the withdrawal of the legal representative, it would appear that Desert Management Pty Ltd purports to act as the applicant's agent in these matters. There is however no evidence before the Court of such appointment pursuant to s 84B. In the absence of such evidence, I do not consider Desert Management Pty Ltd has authority to act for or on behalf of the applicant in either proceeding. 15 Furthermore, at the directions hearing held on 12 March 2012 there was no appearance for the applicant, nor did any person seek leave to appear.

STATUTORY FRAMEWORK 16 Section 190F(6) of the Act provides: The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made (the application in issue) if: (a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and (b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 17 It applies in the following circumstances as set out in s 190F(5) of the Act: Subsection (6) applies in a case where: (a) the Registrar does not accept the claim for registration either because, in the opinion of the Registrar or, if the claim is reconsidered under section 190E, of the member of the NNTT reconsidering the claim: (i) it does not satisfy all of the conditions in section 190B; or (ii) it is not possible to determine whether all of the conditions in section 190B have been satisfied because of a failure to satisfy section 190C; and (b) the Court is satisfied that the avenues for: (i) the reconsideration under section 190E of the Registrar's decision; and (ii) the review under this section of the Registrar's decision; and (iii) the review of orders made in the determination of an application under this section; and (iv) the review of the Registrar's decision under any other law; have all been exhausted without the registration of the claim. 18 As McKerracher J noted in Strickland v Western Australia [2010] FCA 272 (at [4]-[10]): 4 Section 190F(6) of the Act, introduced in the amendments made to the Act on 20 July 2007, confers upon the Court a discretionary power to dismiss an application, either on the application of a party or on its own motion, if: a. The Court is satisfied that the application has not been amended since consideration by the Native Title Registrar (the Registrar) and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and b. In the opinion of the Court, there is no other reason why the application in issue should not be dismissed. 5 Pursuant to s 190F(5) of the Act, the new dismissal power applies where: a. The Registrar does not accept the claim for registration because: i. It does not satisfy all the merit conditions of the registration test; or ii. It was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and b. The Court is satisfied that the avenues for reconsideration and review have been exhausted without registration of the claim. 6 Order 78 r 12 of the Federal Court Rules provides an application for review must be filed within 42 days of the notification of the Registrar's decision. 7 The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 provides an insight into the rationale behind the introduction of the new dismissal power: Currently, while unregistered applications do not receive certain procedural benefits that attach to registered claims (such as the right to negotiate), unregistered applications may still proceed to determination. There is presently no requirement on claimants to amend their claim to meet the requirements of the registration test. The amendments inserted by item 73 are intended to provide a greater focus on the responsibility of applicants to take steps to improve the quality of their claims, recognising that poor quality claims are a burden on the native title system. 8 If the Court considers the application has been amended since consideration by the Registrar or is likely to be amended in a way that would lead to a different outcome once considered by the Registrar, it would be appropriate for the Court to await the outcome of the reapplication of the registration test before considering whether to dismiss the application. 9 Pursuant to s 190F(6) of the Act, the Court may consider any 'other reason' why an application should not be dismissed. The Explanatory Memorandum to the Native Title Act Amendment Bill 2006 suggests that the criterion set out in 190F(6) '…will ensure that applications are not dismissed where there is good reason for a claim remaining in the system, despite being unregistered' (at para 4.331). 10 As to the principles applicable to how s 190F(6) should operate, I refer to and respectfully adopt (without repeating) the analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518. 19 I respectfully agree with and adopt the analysis and principles articulated by McKerracher J, above. As with McKerracher J, I respectfully adopt (without repeating) the analysis by Logan J in Christine George & Ors on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 of the principles applicable to how s 190F(6) should operate. 20 The applicant has not applied to the National Native Title Tribunal, pursuant to s 190E(1) of the Act, for reconsideration of the decisions not to accept Jurnall Gidja #1 or Jurnall Gidja #2 for registration, nor has the applicant applied to the Court pursuant to s 190F(1), or otherwise, for review of those decisions. As the material filed in response to the orders of the Court made on 15 March 2011 shows, no application seeking leave to amend Jurnall Gidja #1 or Jurnall Gidja #2 has been sought or appears to have been contemplated. Further, no steps have been taken or information provided to suggest that a different outcome might be obtained were the applications to be resubmitted to the registration test. 21 The provisions of s 190F(6) of the Act provide that the Court may of its own motion dismiss an application that cannot be registered. In the circumstances, I find that the provisions have application to these proceedings because: (a) in the opinion of the Native Title Registrar's delegate, the applications did not satisfy all of the conditions in s 190B, thereby meeting the condition in s 190F(5)(a)(i); and (b) the avenues for reconsideration of the decisions of the Native Title Registrar's delegate under s 190E, or for review under s 190F, or otherwise, have not been availed of by the applicant; thereby meeting the condition in s 190F(5)(b). 22 Dismissal of applications under s 190F(6) of the Act does not prevent the making of any further claimant application(s) under s 61.

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