Tucker on behalf of the Narnoobinya Family Group v Western Australia

REASONS FOR JUDGMENT 1 There are two motions before the Court, both dated 11 September 2009. The motions are filed in two substantive applications made under the Native Title Act 1993 (Cth) ("the Act") for determinations of the existence of native title. I will refer to the substantive applications as the Narnoobinya claim and the Ngadju claim. 2 The Ngadju claim is well advanced in the Court. It is significantly part-heard and only needs the calling of expert evidence for the closure of the applicant's case. It overlaps substantially with the Narnoobinya claim which, by contrast, has not been prosecuted with any diligence. Few steps have been taken to pursue the Narnoobinya application since it was filed and none since October 2006. The Narnoobinya applicants failed to obtain funding to advance their claim. They have failed to file pleadings, expert evidence or act in pursuance of any orders of the Court in the management of the application. This occurred during the period where the Narnoobinya applicants were not represented by counsel. In contrast, the Ngadju applicants have complied with Court case management orders, filed and served statements of evidence from witnesses, called preservation evidence in December 2004 and June 2009 and filed and served expert reports. The Ngadju proceeding is capable of being heard by the Court within a relatively short time frame.

THE DISMISSAL MOTION 3 By motion brought by the Goldfields Land and Sea Council ("the GLSC"), on behalf of the Ngadju applicants, the Court is requested to order that the Narnoobinya application be dismissed pursuant to O 35A r 3(1)(a) and/or O 20 r 4(2) of the Federal Court Rules. In oral submissions before the Court, counsel placed emphasis on O 20 r 4(2). 4 This motion is made in reliance on the failure of the Narnoobinya applicants to progress their application. The Narnoobinya applicants filed their application on 4 June 1997 but have not taken any steps to file evidentiary material or points of claim or in any other way sought to progress their claim in the Court, although they have been involved in mediation conducted in the Native Title Tribunal. The Narnoobinya applicants were joined to the Ngadju application in September 2000 but took no action to file any evidence in the Ngadju application or to call any witnesses during the hearing of preservation evidence or to question any Ngadju witnesses. The Narnoobinya applicants ceased to be party to the Ngadju application in November 2006 as result of failure to comply with an order of the Court in the Ngadju proceeding that they file an address for service. 5 Whilst the Narnoobinya applicants have had some involvement in mediation in the Native Title Tribunal in the Ngadju matter, the only action taken by them since November 2006 in the Court is to seek to restore their position as having party status in the Ngadju claim. It was that restoration attempt that has led to the filing of the dismissal motion. 6 In an affidavit filed in support of the Narnoobinya applicants' application to be restored as a party in the Ngadju claim, Ms Normae Bennett (the sister of the applicant, Ms Dorothy Ann Tucker) says, on information from Ms Tucker, that no address for service was filed in 2006 on account of Ms Tucker's illness and the lack of legal representation. The Narnoobinya motion has been the catalyst for the dismissal motion. As the Narnoobinya application is a long way off from being dealt with, the Ngadju applicants understandably are concerned that their matter may be delayed considerably while waiting for a resolution of the Narnoobinya matter and that a revival of the Narnoobinya matter may result in the Ngadju applicants incurring additional expense and delay including the possibility of the need to recall witnesses in their matter.