Simms v Minister for Land & Water Conservation

General 1 By a notice of motion filed on 29 July 2002 New South Wales Native Title Services Limited ("NTS") moves for the following orders: "1. That New South Wales Native Title Services Limited (NSW NTS) be joined as a party to the proceedings; 2. That pursuant to section 84C of the Native Title Act 1993 (Cth) the proceedings be struck out; 3. Such other orders as the Court considers appropriate." 2 The proceeding was commenced on 21 May 2002. The motion of NTS is supported by an affidavit of Barbara Jill Guthrie, solicitor, sworn 29 July 2002. Ms Guthrie is employed by NTS as a Senior Legal Officer and has the principal carriage of the matter on behalf of NTS. 3 In order to appreciate the background to the present proceeding and NTS's motion, it is necessary to refer to an earlier proceeding. That earlier proceeding is number NG 6006 of 1998 in which Ernest William Duren was the named applicant and in which there were several respondents. That application was for a determination of native title and was itself a "continuation" of an application by Mr Duren to the National Native Title Tribunal ("the Tribunal") filed on 6 September 1995 (NC95/9). By that application Mr Duren applied on behalf of "The Elouera Aboriginal People". Mr Duren's address for service was stated in that application as: "Korewal = La Perouse. Elouera = Illawarra. Jerrungarugh=Shoalhaven. Tribal Elders : Aboriginal Corporation". 4 That Corporation has also been referred to as the "KEJ Tribal Elders Aboriginal Corporation". I will call it simply "KEJ". Mr Duren's representative in that proceeding was also shown as KEJ and the contact person at that organisation was shown as "Reuben Brown", the third named applicant in the present proceeding. 5 When Mr Duren's proceeding was before the Tribunal, Mr Brown played a key role in relation to it. For example, on 2 January 1995 he wrote a letter referring to the fact that as contact person for KEJ, he had lodged the application for determination of native title with the Tribunal on behalf of Mr Duren, and advising that he wished to amend the area of land and water covered by the application in accordance with a map attached to his letter. It seems clear that, at that time and for a long time afterwards Mr Brown saw his interests as allied with those of Mr Duren. 6 Pursuant to s 74 of the Act, as it stood prior to 30 September 1998, French J, the then President of the Tribunal, ordered on 26 August 1998 that the Native Title Registrar lodge the application with this Court. At the first directions hearing in the Court in October 1998, lengthy and detailed directions were made to progress the matter. There was, however, no progress, or hardly any, from that time down to a time recently when the proceeding was dismissed. 7 In the earlier part of 2001 there was apparently a falling out between Mr Brown and Mr Duren. On 29 August 2001, Mr Brown filed a notice of motion to have Mr Duren removed as applicant and to have himself substituted. On 5 October 2001 Mr Brown's wife, Gwendoline Laura Brown, the second named applicant in this proceeding, filed a notice of motion seeking to have Mr Duren removed as applicant and herself made applicant in his place. On 2 November 2001, Mr Brown's motion was dismissed by consent. On 7 December 2001 I gave reasons for judgment for dismissing Mrs Brown's motion. 8 Lack of progress and a large number of directions hearings were features of the earlier proceeding. The respondents were reluctant to seek dismissal of the proceeding hoping, they told me, that the various parties or factions involved might resolve their differences. That was the position taken by Ms Phillips of counsel representing the fourth respondent to the earlier proceeding, The New South Wales Aboriginal Land Council. Accordingly, rather than seek a dismissal, in December 2001 Ms Phillips suggested that there be a yet further lengthy adjournment in the hope that a meeting of the indigenous people involved, to be convened with the assistance of her client, would come to a resolution. With some misgiving in view of the previous history of the matter, I stood over the proceeding to 7 May 2002. The dissension had not been resolved and on that date I made Orders 1 to 4 as follows: "1. Order that the applicant on or before 20 May 2002 provide to the Court and all parties a list of all persons who are members of the Native Title Claim Group, including in respect of each person: (a) his or her name (including, where applicable, Aboriginal and European names and the name by which he or she likes to be known); (b) his or her place of residence; (c) his or her place of birth; (d) the basis upon which the applicants say that the person is a member of the applicant Native Title Claim Group. 2. Direct the applicant, on or before 20 May 2002, to file and serve affidavit evidence establishing that he is authorised by the members of the Native Title Claim Group to make the present application on their behalf. 3. Order that if Orders 1 and 2 are not complied with, the proceeding shall stand dismissed immediately following the non-compliance. 4. Stand over the proceeding to 27 May 2002 at 9.30 am on the basis that the direction hearing will be vacated if Order 3 has taken effect." 9 It will be noted that Order 3 was a self-executing order of dismissal. 10 Apparently on 20 May 2002, the last day for compliance with Orders 1 and 2, Mr Brown attended at the Registry and unsuccessfully attempted to file in the earlier proceeding an amended application by the present three applicants in this proceeding. The attempt was misconceived because they were not the applicants in the earlier proceeding. In any event, the filing of an amended application on that day, even by Mr Duren, would not have been a compliance with Orders 1 and 2 of 7 May 2002. 11 The next day Mr Brown filed the application by which the present proceeding was commenced (he used the form of amended application he had attempted to file the preceding day, with the word "amended" deleted). I understand it is not in dispute that the new application is in respect of the same, or substantially the same, land and waters as was Mr Duren's application in the earlier proceeding. 12 In the application by which this proceeding was commenced, the applicants rely for their authority to commence it on a meeting held on 17 February 2002. But the notice convening that meeting and the minutes of what happened at it clearly show that it related to the earlier proceeding: it was resolved that Mr Duren be removed as applicant on the Elouera Native Title Claim N 6006 of 1998, and that he be replaced by the present applicants.