Smith on behalf of the Single Noongar Claim Group v State of Western Australia

REASON FOR DISCONTINUANCE 6 In an affidavit filed 22 February 2021, Ms Smith deposed that she has continued to follow traditional laws and customs for meeting with the Elders and members of the Noongar People to update them on the progress of the claim and obtain their approval to amend anything should it be required. On or about 24 November 2020, Ms Smith arranged for a meeting (November Meeting) to be held for the Elders and members of the Noongar People to be updated on the progress of the Claim. 7 At the November meeting, Mr Stevenson was given instructions unanimously to withdraw the Claim against the State. Mr Stevenson advised the Elders and members of the Noongar People that the prospects of success with respect to their Claim were extremely limited once the ILUAs were registered, and that a possible avenue was to seek leave of the Court to withdraw the Claim and to seek that there be no order as to costs. 8 Ms Smith says she has communicated with Elders and members of the Noongar People on Facebook and at other meetings, including the meetings called by the South West Aboriginal Land and Sea Council, to discuss the ILUAs. She says that all Elders and members of the Noongar People that she has spoken with, either in person, on the phone, by text message, or on social media have told her that they support the withdrawal of the Claim. 9 As the application is made by Ms Smith as a representative party, leave is required pursuant to r 26.12(4) of the Rules.

DISCRETION 10 The principles applicable on an application for leave to discontinue proceedings were recently canvassed by Reeves J in Bonner on behalf of the Jagera Yagara Gurrangnam v State of Queensland [2021] FCA 35. As his Honour noted (at [13]), a factor that will usually affect the exercise of the discretion in relation to native title proceedings is whether the members of the native title claim group have been consulted about the proposed discontinuance. 11 The evidence given by Ms Smith is that Elders and members of the Noongar People have been consulted about the proposed discontinuance and have indicated their support for the discontinuance of the Claim. 12 There is and has been no opposition communicated to Ms Smith in respect of the orders sought for discontinuance. 13 The State does not oppose the application for leave to discontinue, (although the State does not necessarily accept as correct all the facts relied upon by Ms Smith, but acknowledges that any difference on such matters is immaterial for present purposes). The State has not contended that it will suffer any injustice or prejudice if the proceeding is discontinued. 14 The strike out application was brought at an early stage (in practical effect) of the proceedings and before any substantive orders have been made to progress the proceeding. With approval of the Court, the parties have taken no steps until the outcome of the application for special leave to appeal was known. 15 It is undesirable for Ms Smith to be forced to continue with the litigation unwillingly, in circumstances where Ms Smith on behalf of the Single Noongar Claim Group, Elders and Noongar People has been informed that the litigation is unlikely to succeed against the State by reason of the upholding of the validity of the ILUAs and their subsequent registration. That view would appear to be sound. 16 In all circumstances leave should be granted to discontinue the Claim. 17 Ms Smith seeks that no order for costs be made in reliance on s 85A(1) of the Act. The State does not contend that an order for costs should made. It also accepts its strike out application will be vacated. 18 As noted, the State does not accept that Ms Smith is properly authorised, contrary to para 10 of Ms Smith's Outline of Submissions dated 23 February 2021. This issue is raised in ground 1(b) of the strike out application. Nevertheless, whether or not this application has been made by a person who was authorised by the native title claim group, having regard to s 84D(4) of the Act, if applicable, and s 37M of the Federal Court of Australia Act 1976 (Cth), it is appropriate for the Court to make the orders sought by Ms Smith. 19 The orders will be: (1) The applicant be granted leave to discontinue the whole of the proceeding pursuant to r 26.12(2)(c) and r 26.12(4) of the Rules. (2) There be no order as to costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.