Port Bajool Pty Ltd v State of Queensland

1. GAG Crystalbrook Station Pty Ltd be joined as the applicant in this proceeding and Port Bajool Pty Ltd be removed as a party. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 1 This interlocutory application seeks an order under r 9.09(2) of the Federal Court Rules 2011 (Cth) (the Rules) to replace Port Bajool Pty Ltd (Port Bajool) with GAG Crystalbrook Station Pty Ltd (Crystalbrook) as the applicant in this non-claimant native title determination application filed under s 61(1) of the Native Title Act 1993 (Cth) (NTA). 2 The application arises in the following factual context. 3 Until December 2016, Port Bajool held a rolling term lease over Lot 2 Crown Plan LD 157, known as Crystalbrook Station (the lease). The lease commenced on 1 April 1964 and was later extended to cease on 31 March 2047. 4 In December 2014 the State of Queensland offered to convert the lease to freehold subject to Port Bajool complying with various provisions of the NTA. 5 As a consequence, on 8 April 2015, Port Bajool filed the present non-claimant application over the area covered by the lease, seeking a determination that native title did not exist in that area. If no subsequent claimant application were filed, this non-claimant application would have attained s 24FA protection for the lease area (see Part 2, Division 3, Subdivision F of the NTA, particularly s 24FC). 6 However, on 24 August 2015, in response to the s 66 notice that was issued following the filing of this non-claimant application, the Wakaman People filed a native title determination application under ss 13 and 61 of the NTA (QUD 746 of 2015). The claim area for the Wakaman People's application included the area of the lease. This meant that Port Bajool's non-claimant application did not result in it obtaining s 24FA protection over the lease area mentioned above. 7 Port Bajool subsequently became a respondent party to the Wakaman People's proceeding. 8 On 9 December 2016, orders were made under s 67 of the NTA providing for both the Wakaman People's proceeding and this proceeding to be dealt with together. 9 On 13 December 2016, Crystalbrook purchased Port Bajool's interest in the lease. 10 On 9 June 2017, orders were made to join Crystalbrook as a respondent party to the Wakaman People's proceeding and to remove Port Bajool as a party to that proceeding. 11 This interlocutory application was made at the same time. The question it raises is whether the Court has the power under r 9.09(2) of the Rules to order the replacement of an applicant to a native title determination application brought pursuant to s 61(1) of the NTA and, if so, whether such an order should be made in this instance. 12 Rule 9.09(2) provides: If the interest or liability of a party passes to another person during a proceeding, by assignment, transmission, devolution or by any other means, the party or the person may apply to the Court for an order for the joinder of the person as a party or for the removal of the party. 13 Since this is a non-claimant application, it is not affected by the conflicting decisions of this Court about the effect of the 2007 amendments affecting s 66B of the NTA on the availability of O 6 r 9 in the former Rules (now r 9.09) to found an order replacing an applicant in a claimant application (see Sambo v Western Australia (2008) 172 FCR 271; [2008] FCA 1575 (Sambo) at [28]-[30] per Siopis J and Lennon v South Australia (2010) 217 FCR 438; [2010] FCA 743 (Lennon) at [22]-[26] per Mansfield J. See also my decision in QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412; [2010] FCA 1019 at [124] where in obiter I preferred the reasoning in Lennon to that in Sambo). Unlike s 66B, relating as it does to claimant applications, there is no provision of the NTA that prescribes how an applicant in a non-claimant application may be replaced. Even if there were such a provision, it may be noted that the judgments in Lennon and Bygrave would suggest that r 9.09 would most probably be available concurrently. 14 Rule 9.09 and its predecessors have been held to be "drawn in very wide terms" (see Frederikshavn Vaerft A/S v Stena Rederi Aktiebolag (2002) 124 FCR 243; [2002] FCA 1024 at [23] per Sundberg J). They have also been held to be remedial in character and thus require a beneficial interpretation: Suzlon Energy Ltd v Bangad (2011) 196 FCR 259; [2011] FCA 921 at [22] per Rares J. 15 In the circumstances of this matter where the interests of Port Bajool in this NCA have passed to Crystalbrook, on its face, r 9.09(2) clearly applies. That being so, I consider that the power exists under that rule to make the order sought. That then raises the latter aspect of the question posed above (see at [11]), namely whether the order should be made in this instance. On that question, if this non-claimant application no longer served any purpose, it would plainly be futile to make the order. However, I consider this non-claimant application does serve at least one purpose. That is, to provide the applicant in it with the capacity to seek a determination that native title does not exist in the lease area and thereby obtain s 24FA protection with respect to that area, should the Wakaman People's application be discontinued or dismissed at some point in the future. I canvassed this possibility in CG v Western Australia (2016) 240 FCR 466; [2016] FCAFC 67 at [107] and [111]. 16 I therefore consider that the power exists under r 9.09 to make the order sought and it is appropriate, in the circumstances, that it should be made. Accordingly, I order that: