Bell on behalf of the Ngunawal People v New South Wales Minister for Lands

[2010] FCA 1056

FEDERAL COURT OF AUSTRALIA

Bell on behalf of the Ngunawal People v New South Wales Minister for Lands [2010] FCA 1056

Citation:		Bell on behalf of the Ngunawal People v New South Wales Minister for Lands [2010] FCA 1056
Parties:		RUTH JOSEPHINE BELL ON BEHALF OF THE NGUNAWAL PEOPLE v NEW SOUTH WALES MINISTER FOR LANDS
File number(s):		NSD 808 of 2009
Judge:		JAGOT J
Date of judgment:		29 September 2010
Catchwords:		NATIVE TITLE – whether application should be dismissed under s 190F(6) of the Native Title Act 1993 (Cth)
Legislation:		Native Title Act 1993 (Cth)
Cases cited:		Champion v State of Western Australia [2009] FCA 941
Date of hearing:	24 September 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	The applicant did not appear
Counsel for the Respondent:	Mr H El-Hage
Solicitor for the Respondent:	Crown Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 808 of 2009

BETWEEN:	RUTH JOSEPHINE BELL ON BEHALF OF THE NGUNAWAL PEOPLE Applicant
AND:	NEW SOUTH WALES MINISTER FOR LANDS Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	29 SEPTEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The notice of motion filed by NTSCorp Ltd on 17 August 2010 be 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 808 of 2009

BETWEEN:	RUTH JOSEPHINE BELL ON BEHALF OF THE NGUNAWAL PEOPLE Applicant
AND:	NEW SOUTH WALES MINISTER FOR LANDS Respondent

JUDGE:	JAGOT J
DATE:	29 SEPTEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The issue for decision is whether I should dismiss this application under s 190F(6) of the Native Title Act 1993 (Cth).

2. As summarised by McKerracher J in Champion v State of Western Australia [2009] FCA 941 at [2]-[3]:

   [2] Section 190F(6) of the Native Title Act 1993 (Cth) (the NTA), introduced in the amendments made to the NTA in July 2007, confers upon the Court a discretionary power to dismiss an application, either on the application of a party or on its own motion, if:

   (a)the Court is satisfied that the application has not been amended since consideration by the Native Title Registrar (the Registrar) and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar, and

   (b)in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

   [3] Pursuant to s 190F(5), the new dismissal power applies where:
   (a)       the Registrar does not accept the claim for registration because:

   (i)        it does not satisfy all the merit conditions of the registration test; or

   (ii)it was so procedurally defective as to render it impossible to determine whether the claim satisfies the merit conditions; and

   (b)the Court is satisfied that the avenues for reconsideration and review have been exhausted without registration of the claim.

3. The present case satisfies the pre-conditions in s 190F(5) of the Native Title Act. On 13 November 2009 the Native Title Registrar refused to register the claim because it did not satisfy all the merit conditions of the registration test.

4. On 22 January 2010 the Court Registry notified the parties that I wished to hear from them as to whether, in the circumstances of the refusal of registration, the application should be dismissed under s 190F(6).

5. On 18 February 2010 the applicant notified the Court that the application was proposed to be amended.  The applicant sought an adjournment to enable the amended application to be prepared.

6. Following the grant of extensions of time to the applicant, a notice of motion was filed on 23 April 2010 seeking leave to amend the application.  I made orders giving the parties an opportunity to make submissions in respect of the proposed amended application.  This motion was ultimately listed for hearing on 24 September 2010 (after the vacation of an earlier hearing date at the applicant’s request on the ground of ill health).

7. The Minister for Lands filed submissions on 25 June 2010. The Minister submitted that it was open to the Court to both refuse leave to amend the application and dismiss the claim under s 190F(6) of the Native Title Act.

8. According to the Minister’s submissions, the proposed amendments do not remedy the deficiencies which led to the registration of the claim being refused.  In particular, the amendments do not address the Registrar’s finding that the application contained insufficient material to support the native title rights and interests claimed.

9. The applicant did not file any submissions in support of the proposed amendments.  Instead, by email on 23 September 2010, the applicant’s son advised that the applicant no longer wished to continue with the application.  By email in response on the same day, the Court Registry advised that leave was required to discontinue the application.  The applicant’s son responded to the effect that the applicant wished to withdraw from the matter and could not understand why the Court’s permission to do so was required. 

10. At the hearing on 24 September 2010, the applicant did not appear.  The Minister appeared and relied on the written submissions filed 25 June 2010.  NTSCorp Ltd also appeared in reliance on a notice of motion filed on its behalf on 17 August 2010 seeking orders either that NTSCorp Ltd be joined as a party to the proceeding or that the application be dismissed.

11. It is apparent from the circumstances set out above that the power in s 190F(6) of the Native Title Act is available in this case. All pre-conditions to its exercise are satisfied. The applicant was given an opportunity to amend the application in a way that would enable the claim to be registered. The proposed amended application does not address the substantive deficiencies which the Registrar identified in the original application and which caused the Registrar to refuse to register the claim. The Minister’s written submissions pointed out the continuing substantive difficulties with the application as proposed to be amended. The applicant did not respond to these submissions but, rather, indicated a wish to withdraw from the proceeding. It follows that, in all of the circumstances, the application is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar. The same circumstances provide the basis for my opinion that there is no other reason why the application should not be dismissed. I make orders accordingly.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        29 September 2010