Bodney v Bropho [2004] FCAFC 226 (24 August 2004)

NATIVE TITLE – appeal from decision of single judge striking out native title claim – principles applicable on strike-out application under s 84C of the Native Title Act 1993 (Cth) – amendment to s 61 of the Native Title Act 1993 (Cth) – whether application amended after introduction of Native Title Amendment Act 1998 (Cth) required to satisfy requirements of s 61 as amended – application of transitional provisions

Commonwealth Constitution s 116
Federal Court of Australia Act 1976 (Cth) s 24(1A)
Native Title Act 1993 (Cth) ss 61, 61A, 62, 84C, 251B
Native Title Amendment Act 1998 (Cth) Item 21 Schedule 5

Federal Court Rules O 13, O 20 r 2, O 29 r 2

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 referred to
Bodney v State of Western Australia [2003] FCA 890 discussed
Branfield v Wharton [2004] FCA 138 referred to
Bright v Femcare Ltd [2002] FCAFC 243; (2003) 195 ALR 574 referred to
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 referred to
Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767 referred to
Daniels for the Ngaluma People v State of Western Australia [1999] FCA 686 discussed
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 referred to
Dieri People v State of South Australia [2003] FCA 187; (2003) 127 FCR 364 discussed
Donnelly v Minister for Land and Water Conservation [1999] FCA 1581 discussed
Edward Landers v State of South Australia [2003] FCA 264 referred to
Eora People – Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 discussed
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 followed
House v The King [1936] HCA 40; (1936) 55 CLR 499 followed
Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 referred to
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 referred to
Neimann v Electronic Industries Ltd [1978] VR 431 discussed
Quall v Risk [2001] FCA 378 discussed
Risk v Native Title Tribunal [2000] FCA 1598 referred to
Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 discussed
Williams v Grant [2004] FCAFC 179 discussed

Australia, Senate, Debates, 1 December 1997

CHRISTOPHER ROBERT BODNEY V ROBERT CHARLES BROPHO & ORS
W 6007 of 2003

CHRISTOPHER ROBERT BODNEY V ROBERT CHARLES BROPHO & ORS
W 6008 of 2003

CORRIE CHRISTOPHER ROBERT BODNEY ‘SNR’ V ROBERT CHARLES BROPHO & ORS
W 6009 of 2003

CORRIE CHRISTOPHER ROBERT BODNEY ‘SNR’ V ROBERT CHARLES BROPHO & ORS
W 6010 of 2003

CORRIE CHRISTOPHER ROBERT BODNEY ‘SNR’ V ROBERT CHARLES BROPHO & ORS
W 6011 of 2003

SPENDER, BRANSON AND STONE JJ
24 AUGUST 2004
SYDNEY (HEARD IN PERTH)

BETWEEN:	(CORRIE) CHRISTOPHER ROBERT BODNEY APPELLANT
AND:	ROBERT CHARLES BROPHO FIRST RESPONDENT RICHARD WILKES SECOND RESPONDENT ALBERT CORUNNA THIRD RESPONDENT WILLIAM WARRELL FOURTH RESPONDENT KELVIN GARLETT FIFTH RESPONDENT GREGORY GARLETT SIXTH RESPONDENT
JUDGES:	SPENDER, BRANSON AND STONE JJ
DATE OF ORDER:	24 AUGUST 2004
WHERE MADE:	SYDNEY (HEARD IN PERTH)

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN:	(CORRIE) CHRISTOPHER ROBERT BODNEY APPELLANT
AND:	ROBERT CHARLES BROPHO FIRST RESPONDENT RICHARD WILKES SECOND RESPONDENT ALBERT CORUNNA THIRD RESPONDENT WILLIAM WARRELL FOURTH RESPONDENT KELVIN GARLETT FIFTH RESPONDENT GREGORY GARLETT SIXTH RESPONDENT

1 I agree with the reasons for judgment of Stone J, with one qualification. I agree with the proposed orders.

2 The qualification is that in my opinion it is unnecessary, in this case, to decide whether the amendments to the Hartfield Park and the main application had the consequence, because the composition of the group was changed, of requiring compliance with s 61 of the new Act. This is because, in my opinion, there was never any intention in Mr Bodney to change the composition of the claim group. This is not a case where the claim group is "different in substance" from the claim group in the original application.

3 Emmett J in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 ("Wharton") said at par 27:

4 However, his Honour may have qualified the generality of that observation later in his judgment, when he referred to observations of O’Loughlin J in Quall v Risk [2001] FCA 378. Emmett J said:

’29. O’Loughlin J in Quall referred (at [63]) to an amendment involving a change in ‘the composition of the claimants’. It is not entirely clear what his Honour meant by the reference to an amendment made ‘by changing the composition of the claimants’. It may be that his Honour intended to refer to a change in the membership of the claimant group, as distinct from further particularisation of the claimant group. There may be some justification for treating as a fresh application, an application purporting to be made on behalf of a native title claim group different in substance from the group named pursuant to s 61(2) of the Old Act. If there were an amendment to that effect, the application as amended might fairly be characterised as a fresh application. It is not apparent to what extent Quall involved a change in substance as to the persons on whose behalf the claim was being made.

5 In this case there was never any intention in Mr Bodney to change the composition of the claim group. Despite the finding of fact by the primary judge to the contrary, Mr Bodney was asserting that there was an identity between the persons described as "Ballaruk people", "Ballaruk and Didjarruk people", "descendants of Melba Armitage and William Bodney" and "Bodney family group".

6 The primary judge concluded, as a matter of fact, that the Hartfield Park and main applications were made on behalf of a wider group than Mr Bodney’s immediate family, and that, as so understood, Mr Bodney had failed to establish authorisation in either of the ways contemplated by s 251B of the Act.

7 Whether the Ballaruk and Didjarruk people was a wider group of people than Mr Bodney’s immediate family was a matter of serious dispute before the primary judge. William Warrell and Margaret Gentle had sworn affidavits consistent with the view that the Ballaruk and Didjarruk people was a wider group than Mr Bodney’s immediate family. However, Mr Warrell and Ms Gentle were not cross-examined, even though it is plain that Mr Bodney disputed the accuracy and indeed the truthfulness of the claims that they made in their respective affidavits.

8 Resolution of that factual question is, in my respectful view, not properly the subject for determination on a strike-out application. The finding of lack of authorisation (or, more precisely, the primary judge’s finding that Mr Bodney had failed to establish authorisation in either of the ways contemplated by s 251B of the Act), was dependent on the factual finding by the primary judge on that question.

9 If, as Mr Bodney contended on the appeal, each of the applications was on behalf of his immediate family, there would be no difficulty in making that plain, by amendment if necessary, although I do not think that there is any fault in the description of the native title claim group ‘The claim group consists of the biological descendants of Melba Armitage (Bluffie) and William Bodney (of their union).’ If there is a deficiency in that description, I see no difficulty in Mr Bodney amending the application to specify the descendants by name.

10 Whether Mr Bodney’s immediate family comprises the entirety of the native title claim group consisting of all the descendants of the Ballaruk and Didjarruk people at sovereignty, who ‘according to their traditional laws and customs hold the common or group rights and interests comprising the particular native title claimed’, (an unlikely scenario as the primary judge noted, but the one which Mr Bodney asserts), might be determined as a preliminary question pursuant to O 29 r 2 of the Federal Court Rules, but in my respectful opinion is a matter of substance to be decided on the merits after evidence.

11 A factual finding about that issue, and in particular a factual finding on disputed evidence untested by cross-examination, is not a basis on which an application asserting such a claim group should be struck out. I agree with the observations of Mansfield J in Edward Landers v State of South Australia [2003] FCA 264 at par 7:

12 An application under s 84C has to be dealt with ‘on the face of it’, using the words of Senator Minchin quoted by Stone J in par 49 in her Honour’s judgment on this appeal.

13 In my opinion, the strike-out application in each of the five applications fell to be determined by the requirements of s 61 under the old Act. This conclusion gives efficacy to Item 21 in Schedule 5 of the amending Act. In my opinion, this case is indistinguishable from Wharton.

14 If each application might have been amended so as to comply with the requirements of s 61 of the old Act, it should not have been struck out, in my opinion.

BETWEEN:	(CORRIE) CHRISTOPHER ROBERT BODNEY APPELLANT
AND:	ROBERT CHARLES BROPHO FIRST RESPONDENT RICHARD WILKES SECOND RESPONDENT ALBERT CORUNNA THIRD RESPONDENT WILLIAM WARRELL FOURTH RESPONDENT KELVIN GARLETT FIFTH RESPONDENT GREGORY GARLETT SIXTH RESPONDENT

15 I have had the advantage of reading in draft the reasons for judgment of Stone J. I hereafter use terms and expressions as defined by her Honour. I agree with her Honour’s reasons for judgment subject to the same qualification as has been identified by Spender J. In my view it is unnecessary, and also undesirable in the circumstances of this appeal, for this Court to reach a concluded view on whether the learned primary judge was right to conclude that the Main application and the Hartfield Park application were required to comply with s 61 of the new Act.

17 The primary judge approached the strike-out applications in respect of the previously amended applications (ie the Hartfield Park application and the Main application) on the basis that it was necessary for them to comply with s 61 of the new Act. His Honour noted that the parties accepted that this was the correct approach. I doubt that his Honour intended to convey that Mr Bodney, who appeared before the primary judge (and before us) without legal representation, made any binding concession in this regard. However, his Honour did not find it necessary to determine whether, as a result of the coming into operation of the Amending Act, the Hartfield Park application and the Main application were required to comply with s 61 of the new Act.

18 The issue of whether the Hartfield Park application and the Main application are required to comply with s 61 of the old Act or s 61 of the new Act is, in my view, to be resolved by determining when the two applications were respectively made within the meaning of item 21 of Schedule 5 to the Amending Act. I do not understand the weight of the authorities to be consistent with a contrary proposition.

19 In Quall v Risk [2001] FCA 378 O’Loughlin J at [63]-[65] concluded that where an applicant, as a matter of free choice, decided to amend an application made under the old Act by changing the composition of the claimants, the application was thereafter required to comply with s 61 of the new Act. Stone J has carefully analysed his Honour’s decision in Quall v Risk. I agree with her Honour’s analysis. I note that in Branfield v Wharton [2004] FCAFC 138 the Full Court (Ryan, Finn and North JJ) at [14] acknowledged that there is scope for questioning the correctness of the principle established by Quall v Risk.

20 In Dieri People v South Australia [2003] FCA 187; (2003) 127 FCR 364 (‘Dieri People’) Mansfield J at [18] expressed the view, choosing his words carefully it seems to me, that the conclusion of O’Loughlin J in Quall v Risk was consistent with decisions requiring amendments of a native title determination application made after the Amending Act to comply with the new Act. Mansfield J referred to Daniels for the Ngaluma People v State of Western Australia [1999] FCA 686; Eora People - Brown v NSW Minister for Land and Water Conservation [2000] FCA 1238 and Donnelly v Minister for Land and Water Conservation [1999] FCA 1581. I note that in Daniel for Ngaluma People v Western Australia RD Nicholson J noted at [17] that it was not contended by any party in that case that the transitional provisions of the Act (presumably the Amending Act) assisted consideration of the issues to be determined. In Eora People – Brown v NSW Minister for Land and Water Conservation Madgwick J concluded that it would be an inappropriate exercise of the Court’s discretion in that particular case to permit the applicant to amend her application unless the application as amended would comply with the new Act. The native title determination application to which Hely J gave consideration in Donnelly v Minister for Land and Water Conservation was one which the transitional provisions contained in Schedule 5 to the Amending Act required to be treated as an application made under the new Act. In short, the authorities to which Mansfield J referred in Dieri People do not provide support for the principle established in Quall v Risk.

21 With respect to O’Loughlin J, I do not agree that where an applicant chooses to amend a native title determination application made under the old Act by changing the composition of the claimants, the application must thereafter comply with s 61 of the new Act. At least so far as any application under s 84C of the Act is concerned, the position is governed by item 21 of Schedule 5 to the Amending Act. Item 21 of Schedule 5 indicates that the question turns on when the main application was made. As Emmett J pointed out in [26]-[27] of Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 (‘Wharton’):

In Branfield v Wharton the Full Court dismissed an application for leave to appeal from the judgment of Emmett J in Wharton.

22 Further, as O 13 of the Federal Court Rules (‘the Rules’) recognises, the Court has wide powers with respect to the amendment of documents in any proceeding. I see no reason to conclude that, subject to any contrary provisions of the NTA, those powers do not extend to ordering or allowing the amendment of a native title determination claim whenever made. Order 13 r 2(5) recognises that an amendment may have the effect of substituting another person as a party. Order 13 r 3A has the effect that, unless the Court otherwise orders, an amendment to a document that has the effect of substituting another party takes effect on the day when the document was first filed. That is, the Rules do not suggest that, when an application is amended in a way which touches on the identity of a party, the application is necessarily to be taken to have been made, even in respect of that party, on the day that the amendment is made. Of course, as the decision of Madgwick J in Eora People – Brown v NSW Minister for Land and Water Conservation recognises, the Court may qualify a grant of leave to amend to achieve that outcome should it consider it appropriate to do so.

23 In each of the Hartfield Park application and the Main application, Mr Bodney was granted leave to amend the application by filing a particular fresh document. The fresh document in each case was in a form prescribed for the purposes of the new Act. That is, the fresh document was not in the form required for a native title determination application under the old Act; it was in the form required for a native title determination application under the new Act. It may be arguable that it was an implicit condition of the leave to amend granted to Mr Bodney in each of the Hartfield Park application and the Main application that the application was to be taken to have been made on the date of the filing of the amended application. However, no argument to this effect was addressed to his Honour or to this Court. It would thus be inappropriate for this Court to reach a final view on the issue.

24 If the Hartfield Park application and the Main application are required to comply with the old Act, in my respectful view, the primary judge erred in striking them out. Each of the Hartfield Park application and the Main application makes it plain that the claim is advanced by Mr Bodney on behalf of a claim group that consists of the biological descendants of Melba Armitage and William Bodney (of their union). The Main application explicitly excludes one member of the described group. In my view the Hartfield Park application and the Main application describe or otherwise identify the others with whom Mr Bodney claims to hold native title sufficiently to satisfy the requirements of s 61 of the old Act.

25 If the Hartfield Park application and the Main application are required to comply with s 61 of the new Act, it is necessary to give consideration to subs 61(4) and s 251B of the new Act. Subsection 61(4) requires a native title determination application to name the members of the native title claim group or otherwise describe them sufficiently clearly so that it can be ascertained whether any particular person is a member of the group. On the assumptions that his Honour apparently made (see [29]-[30] below), that is (i) that a claim can be made by a small group in respect of rights and interests held by a larger group and (ii) that the Hartfield Park application and the Main application made such claims, the Hartfield Park application and the Main application describe the members of the claim group sufficiently clearly for it to be ascertained whether any particular person is a member of the group.

26 Section 251B of the Act governs the means by which persons in a native title claim group may, for the purposes of the Act, authorise a person to make a native title determination application. The section allows for two alternative methods of authorisation. The first method applies where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group, must be complied with in relation to authorising things of that kind. The second method applies where there is no such process. The second process is as follows:

27 As is mentioned above, the primary judge concluded that Mr Bodney had failed to establish that he was authorised under either par (a) or par (b) of s 251B to make either the Hartfield Park application or the Main application. I do not think that his Honour overlooked that on a strike out application it was not for Mr Bodney to establish that he was authorised but rather for those who moved to have the applications struck out to establish a clear case of lack of authorisation. His Honour was clearly satisfied on the evidence before him that Mr Bodney was not authorised by either of the processes for which s 251B provides to make the applications. The reason that his Honour was so satisfied was that, as his Honour stated at [33]:

28 I note incidentally that before us Mr Bodney denied knowingly giving evidence that there are people, other than his siblings and their children, whom he regards as Ballaruk and Didjarruk. Counsel for the respondent was unable to point to any aspect of the evidence given by Mr Bodney to which his Honour referred, that indicates that Mr Bodney regards anyone outside of his immediate family as Ballaruk and Didjarruk. There was, of course, evidence before his Honour, which his Honour accepted, concerning Mr Bodney’s wider family. However, the native title claim group on whose behalf Mr Bodney purports to act does not include all members of Mr Bodney’s wider family.

30 I understand his Honour by the above passage to say that, assuming as he was willing to do, that it was possible for a small group to make a native title claim in respect of rights and interests that are held by a wider group of people, it was certain that their claim must be authorised by the small group. It seems to me to be unlikely that his Honour intended to suggest that a small group could make a native title claim in respect of rights and interests that are held by a wider group of people but only if their claim is authorised by the wider group of people. His Honour had already expressed doubt about the validity of the view expressed by O’Loughlin J and Mansfield J respectively in Risk v National Native Title Tribunal [2000] FCA 1589 and Edward Landers v State of South Australia [2003] FCA 264 that the Act does not permit the making of a native title determination application by a subgroup of the native title claim group. His Honour’s doubt was based upon the power that such a construction of the Act would give to dissidents within the wider group. Dissidents within a wider group would be equally powerful if their authorisation were required by any subgroup that wished to make a native title determination application. Wilcox J was satisfied that Mr Bodney had failed to establish authorisation under either par (a) or par (b) of s 251B of the Act in respect of either the Hartfield Park application or the Main application. I therefore conclude that his Honour must have been satisfied that Mr Bodney had failed to establish authorisation by the small group on behalf of whom his claims were made.

31 It is possible that the small group on whose behalf Mr Bodney has made his claims is also the whole of the group that is alleged by him to hold the claimed native title rights and interests. The rights and interests to which the Act accords recognition include the rules of traditional law and custom that deal with the transmission of those rights and interests (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 194 ALR 538 per Gleeson CJ, Gummow and Hayne JJ at [44]). Absent evidence as to the rules dealing with transmission, it cannot be assumed that any rights and interests now recognised must necessarily be held by all of the living descendants of those who held the rights and interests at sovereignty. That is, it is at least theoretically possible that individuals who are Ballaruk and Didjarruk by descent do not share in all of the native title rights and interests of the Ballaruk and Didjarruk community, perhaps because they have ceased to acknowledge the traditional laws and observe the traditional customs of the Ballaruk and Didjarruk community. However, the issue of whether the small group on whose behalf Mr Bodney has made the claims is also the whole of the group that is alleged by him to hold the claimed native title rights and interests need not be determined on this appeal.

32 By his notice of appeal, Mr Bodney complains that he should have been given an opportunity, perhaps with professional help, to make any changes necessary to validate his applications. The respondents acknowledge that there is no legal impediment in the way of Mr Bodney making fresh applications with proper authority. They contend that, rather than being allowed to remedy any defects in his applications, Mr Bodney should be required to make fresh applications. However, as the relevant substantive native title determination proceedings are part-heard, it is highly undesirable that Mr Bodney should now be required to make fresh applications in respect of the same native title claims. Even if that factor is put to one side, multiplicity of proceedings should generally be avoided (see O 13 r 2(2) of the Rules). Any defect or error capable of being corrected by amendment should ordinarily be allowed to be corrected by amendment.

33 I have, with considerable reluctance, formed the view that the primary judge allowed his views as to the merits of the respective applications made by Mr Bodney to influence his judgment on the strike-out motions. Section 84C is concerned with matters of form and authority, not with the merit of any native title determination application. His Honour concluded at [46] that Mr Bodney’s position could not be cured by further evidence. However, his Honour does not appear to have given consideration to whether Mr Bodney should have been allowed an opportunity to gain, from those on whose behalf he purported to make the Hartfield Park application and the Main application, the necessary authorisations to make the applications. As that native title group is confined to his immediate family he may well be able to gain the necessary authorisations within a relatively short timeframe. Order 13 r 2(6) recognises that a document may be amended to alter the capacity in which a party sues. It is not necessary to decide whether the authorisation requirements of s 61(1) technically affect capacity to sue; they are requirements of an analogous kind. It is no longer the law that a claim for relief cannot be founded on facts or matters that have arisen since the commencement of the proceeding (see O 13 r 2(7) and (8) of the Rules).

34 We did not hear argument on this appeal on the question of whether the Act in its present form, or in its earlier form, permits the making of native title determination applications by a subgroup of those who are alleged to hold the relevant native title rights and interests. It would therefore be inappropriate, in my view, for this Court to express a concluded view on this question.

35 I would grant Mr Bodney leave to appeal, allow the appeal, set aside his Honour’s orders and remit the motions to the primary judge. If the motions continue to be pressed, his Honour will, I consider, be required to determine whether the Hartfield Park application and the Main application are required to comply with the old Act or the new Act. His Honour may also have to determine whether Mr Bodney should be given the opportunity to amend his applications, or any of them. It will be for his Honour to determine whether it is necessary for him to give consideration to whether the Act in its present form, or in its earlier form, permits the making of native title determination applications by a subgroup of those who are alleged to hold the relevant native title rights and interests.

BETWEEN:	(CORRIE) CHRISTOPHER ROBERT BODNEY APPELLANT
AND:	ROBERT CHARLES BROPHO FIRST RESPONDENT RICHARD WILKES SECOND RESPONDENT ALBERT CORUNNA THIRD RESPONDENT WILLIAM WARRELL FOURTH RESPONDENT KELVIN GARLETT FIFTH RESPONDENT GREGORY GARLETT SIXTH RESPONDENT

36 This is an appeal from a decision of a judge of this Court striking out each of five native title applications made by the appellant, (Corrie) Christopher Robert Bodney; see Bodney v State of Western Australia [2003] FCA 890. Those applications are WAG 137 of 1998, WAG 138 of 1998, WAG 139 of 1998, WAG 140 of 1998 and WAG 149 of 1998, collectively the ‘Bodney applications’. The strike-out motions, which claimed that the Bodney applications failed to comply with relevant requirements of the Native Title Act 1993 (Cth) (‘NTA’), were brought by the respondents, Robert Charles Bropho, Richard Wilkes, Albert Corunna, William Warrell, Kelvin Patrick Garlett and Gregory Lawrence Garlett, each of whom was joined as a respondent to the Bodney applications by an order of the primary judge made on 19 August 2003.

37 In each case the application to strike out was based on s 84C(1) of the NTA and O 20 r 2(1)(c) of the Federal Court Rules. As the primary judge observed however, in each case the applicants on the motion confined their submissions to s 84C.

38 Section 84C, which was introduced by the Native Title Amendment Act 1998 (Cth) (‘Amending Act’) and commenced on 30 September 1998, is discussed in some detail below at [45]. For the present it is sufficient to note that the section permits a party to a proceeding to apply to strike out an application that does not comply with any of ss 61, 61A or 62 of the NTA and provides that any such strike out application must be considered before any further proceedings take place in relation to the main application. It was on the basis that the Bodney applications did not comply with s 61 that his Honour concluded that he should strike them out.

39 Section 61 of the NTA sets out in tabular form the applications that may be made under Division 1 of Part 3 of the NTA and states who may make the various applications. Included are applications for the determination of native title such as the Bodney applications. From 30 September 1998 s 61 was amended by the Amending Act. I use the term ‘old Act’ as meaning the NTA as it was before the changes made by the Amending Act. Correspondingly the term ‘new Act’ refers to the NTA after those changes were made.

40 Section 61(1) of the old Act provided that ‘a person or persons claiming to hold the native title either alone or with others’ was permitted to make an application for a determination of native title. Section 61(3) of the old Act added:

41 An application that identifies the ‘others’ without naming them will presumably be one that provides the criterion by which a person’s claim to be one of those others can be tested. It seems to me that in most if not all cases it will be apparent on the face of the application if it complies with this requirement. In this respect the section is significantly different from s 61 of the new Act.

42 The Amending Act introduced the concept of a native title claim group and the requirement that an applicant be authorised by the native title claim group. Section 61(1) of the new Act includes among the persons permitted to make an application for the determination of native title:

43 Section 251B states what is required for a person or persons to be authorised by all the persons in the native title claim group:

44 It will generally not be possible to determine from the face of an application whether, as a matter of fact, the applicant is authorised by the relevant native title claim group. While, in compliance with s 62(1)(v), an application may contain a statement of the basis on which the applicant is authorised, establishing the accuracy of the statement, should it be challenged, is a matter for substantive determination based on evidence.

46 Unfortunately neither the explanatory memorandum for the Amending Act nor the Minister’s second reading speech give any insight into the reasons for adding s 84C to the NTA and why it was not regarded as sufficient to rely on the general rules and practices of the Court concerning summary dismissal, as for instance O 20 r 2(1)(c) of the Federal Court Rules. Nevertheless, it is not difficult to infer from the scheme and purpose of the NTA the reasons for specifically targeting applications that fail to comply with the basic requirements for applications set out in ss 61, 61A and 62.

47 Native title determination applications deal with the concept of customary law and in most cases are made on behalf of a number of people. It is not surprising therefore that they generally involve more than usual practical and legal difficulties including, not uncommonly, disputes between competing claim groups or within the claim group. There can be considerable difficulty in resolving those issues. The difficulties are compounded if there is uncertainty about who is claiming native title in the land that is the subject of the application or if there are multiple claimants asserting essentially identical interests. To some extent, s 61 of the old Act anticipated these problems and attempted to address them by requiring the applicant to describe or otherwise identify the persons with whom he or she claimed to hold native title. It did not, however, resolve the problems.

48 On 1 December 1997 during the Senate debate on the Bill that led to the Amending Act, Senator Minchin, the Special Minister of State and Minister Assisting the Prime Minister stated:

Section 61 of the new Act with its requirement that applications be brought by authorised representatives of the relevant native title claim group was clearly designed to address this problem. The approach is buttressed by s 84C which ensures that a dispute as to whether the application meets the criteria in s 61 may be the subject of strike out motion which must be considered before any further steps are taken in the proceeding. In passing I note that, in relation to applications made after the commencement of s 61 of the new Act, s 66B takes up where s 61 leaves off by providing a mechanism whereby a member of the claim group can apply to have the applicant replaced if the applicant is no longer authorised by the group or has exceeded his or her authority.

49 In the context of questions about the proposed s 84C and the possibility that applications might be summarily dismissed, Senator Minchin said:

50 Senator Minchin also stated that it was government policy that such a strike-out application should be heard before the claim could proceed any further; Australia, Senate, Debates, 1 December 1997, p 9914. However, there was no suggestion that strike-out applications under s 84C were different in substance from strike-out applications commonly made in proceedings before the courts such as under O 20 r 2 of the Federal Court Rules. To the contrary, the Minister commented that the mechanism was ‘a normal part of the law’ and that the section ‘simply says that it is open to other parties to apply to the Federal Court in the normal way for a strike-out of the application’; Australia, Senate, Debates, 1 December 1997, p 9931. In my opinion it follows that strike-out applications under s 84C should be approached in the same way as applications under O 20 r 2.

51 It follows that, as with any strike-out application, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made; Williams v Grant [2004] FCAFC 178 (‘Williams v Grant’) at [48]-[49]. However, as Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, while a litigant must not be deprived improperly of the opportunity for trial, summary dismissal is not reserved for cases where argument is not necessary to establish the futility of the case:

52 It may also be appropriate to rely on evidence to support the extensive argument to which the Chief Justice referred. For example, in the context of a native title determination application, if evidence were to establish unequivocally that an applicant had not been authorised by the native title claim group then summary dismissal of an application for failure to comply with s 61 may be justified. In this regard I note that O 20 r 2(2) permits the Court to receive evidence on the hearing of an application for an order under subrule (1).

53 As a comparison of s 61 of the old Act and s 61 of the new Act shows, an application that complies with the requirements of s 61 of the old Act is unlikely to comply with s 61 of the new Act. In the absence of transitional provisions the amendments might have made the vast majority of applications vulnerable to striking out under s 84C. However, Schedule 5 to the Amending Act contains a number of relevant transitional provisions. These provisions include cl 21, which states that s 84C applies irrespective of whether the main application was made before or after the section commenced. The clause further provides that if the main application was made before s 84C commenced, the reference in s 84C to s 61 or s 62 ‘is a reference to section 61 or section 62 of the old Act’.

54 It will be noted that s 84C (2) requires the Court to ‘consider’ the application for a strike-out before taking any further step in the proceedings. Before the primary judge, counsel for the State of Western Australia submitted that this did not preclude the Court, having considered the merits of the application, deferring its determination in an appropriate case. It was not necessary for his Honour to decide the point as he was of the view that all the Bodney applications had failed to comply with s 61 and that there was ‘no good purpose’ in allowing the applications to remain on foot. The point was, however, the subject of recent consideration by the Full Federal Court in Williams v Grant at [56]-[59], where Lander J (with whose reasons North J and Dowsett J separately agreed) discussed s 84C in some detail and concluded that the Court had power to defer determining a strikeout application in an appropriate case. I respectfully agree with Lander J’s reasons and conclusion on this point. In my view it was open to the primary judge to defer determination of the strike-out applications if he had decided that this was the appropriate course.

55 All five Bodney applications were made before the commencement of the Amending Act. Despite this, the primary judge held that only three were to be considered under the old Act; the other two, having been amended after the commencement of the new Act, had to meet the requirement of s 61 of the new Act. There appears to have been no discussion of this issue before the primary judge; indeed his Honour noted that the parties accepted the qualification. His Honour observed, however, that his view was consistent with the views of O’Loughlin J in Quall v Risk [2001] FCA 378 (‘Quall’) at [65], followed by Mansfield J in Dieri People v State of South Australia [2003] FCA 187; (2003) 127 FCR 364 at 369, at [18].

56 The three Bodney applications that had never been amended were WAG 138 of 1996 (‘Wanneroo Road application’), WAG 139 of 1998 (‘Burswood Island application’) and WAG 140 of 1998 (‘Swanbourne application’). In all of these applications Mr Bodney was named as the sole applicant. However, each application stated that the application was made on behalf of the applicant and others. Those others were identified as ‘Ballaruk People - Bodney Family Group’. The primary judge observed that this description ‘does not provide any meaningful description or identification of the people who fall within the group.’ For this reason his Honour held that the applications did not comply with the requirement of s 61(3) of the old Act, that the application identify the people who are said to hold native title with the applicant, and for this reason they should be struck out.

57 The other two applications, WAG 137 of 1998 (‘Hartfield Park application’) and WAG 149 of 1998 (‘Main Application’) had both been amended after the commencement of s 84C on 30 September 1998. His Honour held that, as a consequence, they were required to comply with s 61 of the new Act; see [48] above.

58 As originally drafted, the Hartfield Park application had stated that it was made on behalf of the applicant (Mr Bodney) and others who were described as the ‘Bodney Family Group’. In Schedule A of the amended Hartfield Park application the description of the claim group includes the following:

There follows a reference to the claim being made on behalf of the Bodney family group. Melba Armitage and William Bodney were the parents of Mr Bodney. In Schedule R to the amended application, there is a statement that Mr Bodney is the eldest surviving male member of the claim group and as such is authorised by traditional laws and customs to deal with such matters as the application.

59 There was evidence before the primary judge that Mr Bodney was one of five children, several of whom have living descendants. There was also affidavit evidence of Margaret Gentle and William Warrell, apparently accepted by his Honour, concerning Mr Bodney’s wider family. Margaret Gentle, who has children, grandchildren and great-grandchildren, claimed to be Mr Bodney’s first cousin. Mr Warrell’s evidence gave information about presently living descendants of children born to Melba Armitage (Mr Bodney’s mother) from a relationship with a Jack Coomer. His Honour also referred to Mr Bodney’s answers to questions put to him on cross-examination in which he referred to ‘thirty senior members’ of the Ballaruk Aboriginal Corporation and stated ‘they’re all family’.

60 The primary judge found that the description of the claim group given in the amended application was inconsistent with other parts of the amended application and with Mr Bodney’s own evidence. His Honour observed:

61 His Honour concluded that the application amounted to the making of a claim by a sub-group of the relevant native title group and for this reason Mr Bodney had failed to establish authorisation under either paragraph (a) or paragraph (b) of s 251B. His Honour found that the Main Application suffered from the same authorisation problem as the Hartfield Park application. Because the Hartfield Park application and the Main Application did not comply with these authorisation provisions, his Honour held that they should be struck out.

62 His Honour summarised his conclusion in relation to all five applications as follows:

63 On 17 October 2003 the appellant filed an amended notice of appeal in each of the Bodney applications stating that he appeals from the whole of the judgment of the primary judge. The appellant has not filed any application for leave to appeal, although at the hearing the respondent did not take issue with this failure. The hearing proceeded as a full hearing of an appeal from the decision of the primary judge.

64 Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from an interlocutory judgment of a single judge of the Court unless ‘the Court or a Judge gives leave to appeal’. The judgment of the primary judge was undoubtedly interlocutory in that legally (if not practically) it did not finally determine the rights of the parties at issue in the proceedings; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246; Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767.

65 In Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397, a Full Federal Court followed a decision of the Full Court of the Supreme Court of Victoria in Neimann v Electronic Industries Ltd [1978] VR 431 which held that, on applications for leave to appeal, the two principal considerations are whether in all the circumstances:

66 In the circumstances (including that the appellant is not legally represented) my approach has been to proceed as if leave to appeal had been sought, to give the matter full consideration, and to refuse leave to appeal only if satisfied that the appeal could not succeed.

67 Mr Bodney lists six grounds of appeal, the first three of which may be dealt with briefly. The first ground of appeal is that his Honour considered a strike-out motion brought by persons who were not party to the Bodney proceedings. The appellant points to the terms of s 84C(1) which provide that a strike-out motion may be brought by a party to the proceeding. This submission is unfounded and the ground of appeal must be rejected. The Court records show that on 19 August 2003 the primary judge ordered that the respondents in this appeal (the applicants on the strike-out motions) be joined as respondents to the Bodney applications.

68 The second ground of appeal is that the primary judge did not take into account that Mr Bodney is semi-literate, has little education or knowledge of the law and was not represented in the proceedings. While this position may impose on the Court an obligation to take particular care that the unrepresented litigant understands the proceedings (see, for example, Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at 445-447), there is no obligation on the Court, indeed it would be injudicious, to attempt to compensate fully for the disadvantage resulting from the lack of representation; there would be a grave risk of the Court being apparently or actually partisan. In any event, no evidence was brought to support this allegation. Indeed the nature of the proceedings before his Honour was such that the lack of representation was comparatively unimportant. The claim that the applications did not meet the requirements of s 61 of the NTA is something that his Honour could determine by his own examination of the applications as distinct from, for instance, a case that calls for forensic experience or skilled cross-examination. This ground of appeal cannot be sustained.

69 The third ground is that his Honour failed to have due regard to the religious rights and practices of the Aboriginal claimant group, contrary to s 116 of the Commonwealth Constitution. No question of any substance relating to Aboriginal beliefs and practices was in issue before his Honour. The question of whether the applications conformed to the requirements of s 61 is a technical question and no issue relating to s 116 of the Constitution was raised. In any event, the appellant did not press this ground at the hearing before the Full Court. This ground must be rejected.

70 The fourth, fifth and sixth grounds of appeal may conveniently be dealt with together. In one way or another, Mr Bodney complains (a) about the way in which the primary judge dealt with the evidence concerning the alleged inadequacies of the Bodney applications and their failure to comply with the relevant form of s 61 of the NTA; and (b) that his Honour failed to give him an opportunity to amend the applications on the basis of an unwarranted assumption that Mr Bodney would not be able to amend the applications to comply with the NTA or obtain legal assistance to do so.

71 Mr Bodney submitted that his Honour did not understand the evidence he gave about the Bodney family group and its relationship to the Ballaruk/Didjarruk people. The alleged misunderstanding appears to centre on the composition of the claimant group in all five applications. As Mr Bodney explained it at the appeal, his position seems to be that the traditional owners of the land subject to the applications were the Ballaruk and Didjarruk people, but that he and his siblings and their descendants are now the only living descendants of those traditional owners. This is why, he submits, the claims refer to the Bodney Family Group and, for this reason, the primary judge was in error in describing the claims as being made on behalf of a sub-group.

72 From the bar table Mr Bodney alleged that the affidavit evidence of Margaret Gentle and William Warrell was false and fraudulent and that, at the hearing before the primary judge, he did not have the opportunity to cross-examine the witnesses because they were not present in Court. He did not explain, however, why no evidence supporting his assertion that the evidence was false was put before his Honour, nor did he seek to adduce such evidence in the appeal. In submissions from the bar table, Mr Bodney also attempted to explain some of his answers on cross examination before Wilcox J as arising from a misunderstanding of what was put to him. Counsel for the respondent did not object to this explanation being offered, although Mr Bodney did not give any sworn evidence to support his explanation.

73 The basis on which an appeal court may interfere with an interlocutory decision made by a trial judge exercising his or her discretion is governed by established principles. The Court is not entitled to substitute its discretion for that of the primary judge unless the primary judge made an error such as was described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ:

74 Where the decision relates to a matter of practice and procedure a court considering an appeal from such an order should exercise particular caution and grant relief sparingly; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177; Bright v Femcare Ltd (2003 ) [2002] FCAFC 243; 195 ALR 574 at 575 per Lindgren J.

75 As far as the unamended applications are concerned, that is the Wanneroo Road, Burswood Island and Swanbourne applications, the problem identified by the primary judge was that they did not identify the persons with whom the applicant claimed to hold native title, as required under s 61(3) of the old Act. The primary judge was undoubtedly correct in his view that the description ‘Ballaruk People – Bodney Family Group’ was not sufficient to identify the other persons with whom Mr Bodney alleged he held native title or to enable them to be identified. The question then arises whether Mr Bodney could have amended his applications so that they conformed to s 61 and, if so, whether he should have been permitted to do so.

76 Although Mr Bodney did not specifically address the point in his submissions, there is little doubt that he was contending that as descriptions of the persons whom he claims hold native title in the subject land the terms:

are interchangeable; that is they all refer to the same body of people. It would seem then that it would have been possible for him to make the appropriate amendments. There is, however, no indication in his Honour’s reasons that he turned his mind to that question. This may be because, as the summary of his Honour’s conclusions quoted at [62] above suggests, his Honour was of the view that the applications could not succeed on their merits and therefore, as a matter of discretion, he should not give leave to amend.

77 Whatever the reason, the context in which the applications under s 84C were brought is highly relevant. Mr Bodney was an unrepresented litigant in proceedings where, as the primary judge noted, considerable evidence concerning the substantive claims had already been taken both in Court in Perth and ‘on country’. While there is nothing to prevent Mr Bodney making new applications if his applications are dismissed, the evidence taken in this proceeding would not be evidence in any new proceeding. Moreover, the evidence on which his Honour relied was seriously disputed and the witnesses whose evidence was contrary to the position advocated by Mr Bodney were not cross-examined. In these circumstances, dismissing the applications without any overt consideration of whether leave to amend should be given leads me to infer, with respect, that there has been a failure to exercise discretion properly; see the comment from House v The King quoted at [73] above. Accordingly, I am of the view that his Honour’s decision in relation to the Wanneroo Road, Burswood Island and Swanbourne applications should be set aside.

78 Before discussing his Honour’s decisions in relation to the Main Application and the Hartfield Park application, I should address a preliminary issue concerning the application of the transitional provisions in clause 21 of Schedule 5; see [53] above.

79 The issue is whether the primary judge was correct in his view that the Hartfield Park and Main applications (together the ‘amended applications’), having been amended since the commencement of the Amending Act, should be considered with respect to the requirements of s 61 of the new Act. As stated at [55] above, the primary judge noted that the position he accepted was not in contention between the parties and was consistent with the views expressed in Quall.

80 In Quall, O’Loughlin J referred to cl 21 and its provision that an application made before the Amending Act did not have to comply with s 61 of the new Act. His Honour commented that as there was no suggestion that the amendments to s 61 were retrospective he had no difficulty in accepting that interpretation and continued, at [63]:

81 The native title determination that was the subject of the strike-out motion before O’Loughlin J in Quall had been amended three times after the commencement of the Amending Act. There was before his Honour, at the same time as the strike-out motion, an application for leave to amend it for a fourth time. The changes that these amendments made or proposed to make, to the application, in so far as they can be determined from the reasons of his Honour, are shown in the following table.

Application or amendment	Date	Applicant and capacity in which application made	Description of ‘others’ or of the claim group
Original application	29 September 1998	Mr Quall, ‘on behalf of the applicant and others as claimants’	Dangalaba Clan
First amendment	6 September 1999	Mr Quall, authorised by ‘claimants of the Native Title Group’.	8 named individuals including the applicant. All eight had the surname, Quall.
Second amendment	27 September 1999	‘Claimants of the Native Title Group who are members of the Dangalaba Clan have agreed to be the claimants and to represent the Dangalaba Clan.’	As above
Third amendment	25 November 1999	[some changes to language of above referred to but not set out in reasons of O’Loughlin J]	As above
Fourth amendment (proposed)	Mr Quall sought leave to amend	[no change mentioned]	‘The native title claim group comprises the following descendants of Danggalaba Clan ancestors and constitutes the contemporary Danggalaba Clan according to Aboriginal law and custom.’ – [there followed a list of names.]

82 The extent of the overlap (if any) between the names of the descendants of the Dangalaba Clan mentioned in the proposed fourth amendment and those mentioned in the first amendment is not clear from O’Loughlin J’s reasons. It is not possible to tell if the amendments to the description of the claim group involved a change in composition of the group or rather a more detailed description of the same group. His Honour stated, however, that the identification of the claim group in the proposed fourth amendment was different from any other group that Mr Quall had previously identified and that, in particular, it contradicted the description of the group identified in his points of claim. He continued, at [58]:

83 Justice O’Loughlin concluded that Mr Quall’s application did not comply with s 61 of the new Act. He stated that his consideration of the transitional provisions concerning the authorisation requirements of s 251B and the concept of a native title claim group, as defined in s 253, assisted him in concluding, at [65], that:

84 As Emmett J commented in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 (‘Wharton’) at [29] it is not entirely clear what O’Loughlin J meant by ‘changing the composition of the claimants’ in the passage quoted above at [80]. As the above table in [81] above shows, it is not clear to what extent the amendments in Quall changed the composition of the native title claim group. The difficulty is enhanced by the expression, ‘changing the particularity of the claimants’, emphasised above at [83]. In any event, I agree with Emmett J’s view at [28] that the provisions of the new Act and the transitional provisions concerning registration do not require ‘a reading of item 21 that departs from its clear and unambiguous terms’, and with his Honour’s further comment at [29]:

85 In other words, for a change in composition of the claim group to justify treating the application as a fresh application made after the commencement of the Amending Act (with the consequence that it is required to comply with s 61 of the new Act), the change would need to be such that, in Emmett J’s words, the claim group is ‘different in substance’ from the group originally named. In my view, however, an amendment that provided further particulars of the claim group, as opposed to one that changed the composition of the claim group, would not justify departing from the clear words of cl 21 of Schedule 5. As the analysis of the successive amendments in Quall shows however, there may be some difficulty in distinguishing between amendments that change the composition of the claim group and those that refine the description or provide further particulars; see [81] – [82] above.

86 The changes in the description of the claim group made to the amended applications are shown in the following table:

Application	Schedule A before amendment	Schedule A after amendment
Hartfield Park	‘Bodney Family Group’	‘The applicant claims on behalf of the native title claim group known as Ballaruk and Didjarruk. The claim group consists of the biological descendants of Melba Armitage (Bluffie) and William Bodney (of their union). I "Corriee" Christopher Robert Bodney make this claim on behalf of the Bodney family group and myself, our children, their children and their children’s children to their traditional lands in accordance with aboriginal lore and it’s (sic) code of ethics. The changes being: The inclusion of the word Didjarruk, which is part of the biological relationship of the Ballaruk clan Group A connection of the two bloods of the aboriginal society’s (sic) the prior owners of the Whadjuk territorial boundary’s (sic) before British sovereignty.’
Main application	‘Ballaruk People Bodney Family Group’	‘The applicant claims on behalf of the Native Title Claim group known as the Ballaruk and Didjarruk People. The claim group consists of the biological descendants of the union between Melba Armitage (Bluffie) and William Bodney. Specifically excluded from the claim group is William Lucas Bodney.’

87 As with the application in Quall (see [82] above), it is difficult to tell from these descriptions whether the amendments result in a change in the composition of the claim group or merely the refining of the description and the provision of additional detail.

88 The primary judge considered the evidence not only of Mr Bodney but also of Margaret Gentle and William Warrell. On the basis of this evidence his Honour formed the view that the claimant group described in the amended applications was a substantially different and wider group than the ‘Bodney family’, the group originally described but that the claim was made only on behalf of a subgroup, the biological descendants of Mr Bodney’s parents. Although his Honour did not express it in this way it would seem that he was of the view that on the evidence before him Mr Bodney’s amendments were not particularisations of the claim groups but rather changes in the composition of those groups. While before us Mr Bodney denied that this was his intention, it was not only open to the primary judge to make those findings but also necessary for him to do so in order to decided the effect of the Amending Act transitional provisions (see [53] above). For the reasons expressed in [73] above I would not interfere with those findings. On the basis of those findings I agree with his conclusion that the amended applications are required to comply with s 61 of the new Act.

89 That conclusion raised the question of authorisation. His Honour concluded that the amended applications did not comply with s 61 because Mr Bodney had failed to establish authorisation in either of the ways contemplated by s 251B. In the comment quoted above at [62] his Honour stated that the problem could not be cured by further evidence (or presumably by amendment) because ‘the deficiencies are contained in the applications themselves’. There are undoubtedly difficulties with the amended applications, but in view of his Honour’s conclusion that the applications could not be salvaged it is appropriate to examine those deficiencies in some detail.

90 For reasons expressed above at [76], I see no reason why the problem with the description of the claim group could not have been cured by amendments which may well have resolved the authorisation problem. I stress that, for the purpose of a strike-out application, resolving the authorisation problem would not necessarily involve Mr Bodney proving that such authorisation had been granted but would have involved a coherent claim to have been authorised. However, as I understand it, his Honour’s view that the applications could not be salvaged arose from what appear to be inconsistent claims made by Mr Bodney including the following:

His Honour concluded that on Mr Bodney’s own logic, (b) and (c) above are inconsistent. With respect, this is not necessarily so. Mr Bodney was clearly having difficulty articulating the finer points of his claim and it might be, for example, that his claim was that the interests referred to in (a) have passed only to the persons referred to in (b) because these are the only descendants of those in (a) who still observe customary law.

91 In any event, is not clear to me that Mr Bodney was actually making the claim in (c). Both before the primary judge and on the hearing of the appeal his answers when questioned on this point are somewhat confusing. In his reasons for judgment, the primary judge quoted at length from the evidence given by Mr Bodney in the course of cross-examination. Counsel for the respondents at the appeal was not able to point to any aspect of that evidence that indicates Mr Bodney was making the claim in (c). Before us, Mr Bodney claimed that his answers on cross-examination before the primary judge had been misunderstood and that the only members of the Ballaruk and Didjarruk peoples still living are his immediate family. While this may be regarded as intrinsically unlikely, this is not relevant to the issue of whether Mr Bodney should have been given leave to amend the Hartfield Park and the Main applications.

92 In these circumstances, and also for the reasons set out in [77] above in relation to the Wanneroo Road, Burswood Island and Swanbourne applications, I would grant Mr Bodney leave to appeal and allow the appeal. I agree with the orders proposed by Branson J.

Counsel for the Appellant:	The appellant appeared in person

Counsel for the Respondent:	Mr M Rynne

Solicitor for the Respondent:	Christine Cooper of the South West Aboriginal Land and Sea Council Aboriginal Corporation

Date of Hearing:	13 February 2004

Date of Judgment:	24 August 2004

(a)	name the persons; or
(b)	otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.’

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 6007 OF 2003 W 6008 OF 2003 W 6009 OF 2003 W 6010 OF 2003 W 6011 OF 2003

JUDGES:	SPENDER, BRANSON AND STONE JJ
DATE:	24 AUGUST 2004
PLACE:	SYDNEY (HEARD IN PERTH)

Federal Court of Australia - Full Court Decisions

Bodney v Bropho [2004] FCAFC 226 (24 August 2004)