Tucker on behalf of the Narnoobinya Family Group v Western Australia [2009] FCA 1459 (4 December 2009)

Last Updated: 9 December 2009

FEDERAL COURT OF AUSTRALIA

Tucker on behalf of the Narnoobinya Family Group v Western Australia [2009] FCA 1459

NATIVE TITLE – application for native title claim to be dismissed – whether application should be dismissed pursuant to O 20 r 4(2) of Federal Court Rules – where failure to prosecute claim

Native Title Act 1993 (Cth) s 67
Federal Court Rules O 20 r 4(2), O 35A r 3(1)(a)

McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 referred to
Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 referred to
Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 referred to

DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP v STATE OF WESTERN AUSTRALIA & ORS

WAD 6170 of 1998

JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE v STATE OF WESTERN AUSTRALIA & ORS

WAD 6020 of 1998

MARSHALL J
4 DECEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6170 of 1998

BETWEEN:	DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP Applicants
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6020 of 1998

BETWEEN:	JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE Applicants
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

JUDGE:	MARSHALL J
DATE OF ORDER:	4 DECEMBER 2009
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. Subject to Orders 2 and 3 below, each motion before the Court is adjourned to a date to be fixed.
2. The applicants in WAD 6170 of 1998, on or before 11 December 2009, file and serve a document setting out precisely what steps they intend to take in that proceeding and a reasonable time frame proposed for carrying out those steps.
3. In the event of non-compliance with Order 2, proceeding WAD 6170 of 1998 is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6170 of 1998

BETWEEN:	DOROTHY ANN TUCKER & ANOR ON BEHALF OF THE NARNOOBINYA FAMILY GROUP Applicants
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6020 of 1998

BETWEEN:	JOHN WALTER GRAHAM & ORS ON BEHALF OF THE NGADJU PEOPLE Applicants
AND:	STATE OF WESTERN AUSTRALIA & ORS Respondents

JUDGE:	MARSHALL J
DATE:	4 DECEMBER 2009
PLACE:	PERTH

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.

Capacity of GLSC to bring the dismissal motion

7. The Narnoobinya applicants in their written submissions submit that the GLSC has no standing to bring the motion on behalf of the Ngadju applicants because the Ngadju applicants are not party to the Narnoobinya application. However, they do acknowledge that GLSC is a respondent to the Narnoobinya claim. I do not consider that technicalities should be a barrier to the doing of justice in this matter. If necessary, the Court has ample power to act on its own motion to grant the relief sought. The issues are well known to the combatants on either side of the debate. At the very least, as a respondent to the Narnoobinya claim, the GLSC is entitled to move for it to be dismissed. It does not do so for its own benefit but for, and on behalf of, the Ngadju people whom it represents. I find the GLSC is entitled to seek the relief claimed in its motion.

Merits of the dismissal application

8. The only formal step taken by the Narnoobinya applicants in their own proceeding is to contest the dismissal application in the course of seeking rejoinder to the Ngadju application. There is no specific evidence before me about what the Narnoobinya applicants intend to do, if anything, to advance their claim; although counsel has made some suggestions about the likely steps which could be made in the immediate future. On the other hand, the Ngadju applicants fear that the State will not be interested in progressing settlement discussions if there is the likelihood of the Narnoobinya claim being actively prosecuted in the Court. They say that excessive delay in the Narnoobinya claim makes that claim an abuse of process.
9. The power of the Court to strike out a claim for determination of native title should be exercised cautiously; see McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [26], per Finn J and see also Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22] per Stone J.
10. In Lawson, Stone J dismissed an application for compensation in circumstances where there was no reasonable prospect of evidence being adduced to advance the claim. Justice Kiefel took a similar approach in Beattie on behalf of Western Wakka Wakka Peoples v Queensland [2007] FCA 596 at [23]. Her Honour referred to a lack of response to the orders of the Court and the lack of any purpose served by the continuation of the proceeding.
11. Given the drastic step involved in terminating a proceeding, and in order to provide an opportunity to the Narnoobinya applicants to give serious consideration to the tasks which confront them, I consider it fair and just to make a self-executing order in the following terms:
    • Unless by 11 December 2009 the Narnoobinya applicants file and serve a document setting out precisely what steps they intend to take in their proceeding and a reasonable time frame for carrying out such steps, their application stands dismissed.
    • In the event that such a document is filed and served within that time, the dismissal motion is adjourned to a date to be fixed.

The listing of any adjourned motion can be discussed and programmed (if necessary) at the Goldfields Case Management Conference to be held on 14 December 2009.

THE JOINDER MOTION

12. If the Narnoobinya applicants show little interest in pursuing their own application with appropriate diligence, little point will be served in allowing them to be rejoined to the Ngadju application or be made a respondent to it.
13. The Ngadju applicants concede that if the Narnoobinya claim is not dismissed s 67 of the Act would require, prima facie, joinder of both applications. This step should not be taken lightly as the Narnoobinya application appears to have stalled in comparison with the Ngadju application. Consequently, it is preferable to adjourn this motion also to a date to be fixed, pending the outcome of the determination, if necessary, of the dismissal motion.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 8 December 2009

In WAD 6170 of 1998

Counsel for the Applicants:	Mr S Wright
Solicitor for the Applicants:	Wright Barristers & Solicitors Pty Ltd
Counsel for the Goldfields Land & Sea Council:	Mr V Hughston SC with Ms T Jowett
Solicitor for the Goldfields Land & Sea Council:	Goldfields Land & Sea Council
There were no appearances by the other respondents.

In WAD 6020 of 1998

Counsel for the Applicants:	Mr V Hughston SC with Ms T Jowett
Solicitor for the Applicants:	Goldfields Land & Sea Council
Counsel for the Narnoobinya Family Group:	Mr S Wright
Solicitor for the Narnoobinya Family Group:	Wright Barristers & Solicitors Pty Ltd
There were no appearances by the respondents.

Date of Hearing:	4 December 2009
Date of Judgment:	4 December 2009