Bennell (Single Noongar Claim No 1) v State of Western Australia

[2012] FCA 386

FEDERAL COURT OF AUSTRALIA

Bennell (Single Noongar Claim No 1) v State of Western Australia [2012] FCA 386

Citation:		Bennell (Single Noongar Claim No 1) v State of Western Australia [2012] FCA 386
Parties:		ANTHONY BENNELL AND ORS (SINGLE NOONGAR CLAIM NO 1) v STATE OF WESTERN AUSTRALIA AND ORS
File number:		WAD 6006 of 2003
Judge:		SIOPIS J
Date of judgment:		2 April 2012
Date of hearing:	2 April 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	7
Counsel for Greenbushes Ltd (Subject to Scheme of Arrangement and Deed of Company Arrangement):	Ms K Perincek
Solicitor for Greenbushes Ltd (Subject to Scheme of Arrangement and Deed of Company Arrangement):	Freehills

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6006 of 2003

BETWEEN:	ANTHONY BENNELL AND ORS (SINGLE NOONGAR CLAIM NO 1) Applicant
AND:	STATE OF WESTERN AUSTRALIA AND ORS Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	2 APRIL 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Greenbushes Ltd (Subject to Scheme of Arrangement and Deed of Company Arrangement) be granted leave to withdraw as a party to these proceedings and be withdrawn as a party to these proceedings.

2.There be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6006 of 2003

BETWEEN:	ANTHONY BENNELL AND ORS (SINGLE NOONGAR CLAIM NO 1) Applicant
STATE OF WESTERN AUSTRALIA AND ORS Respondent

JUDGE:	SIOPIS J
DATE:	2 APRIL 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application by Greenbushes Ltd (Subject to Scheme of Arrangement and Deed of Company Arrangement) (Greenbushes) to withdraw as a party to a native title determination proceeding No WAD 6006 of 2003.

2. Greenbushes brings this application under r 34-106 of the Federal Court Rules 2011.  That rule provides that a party who wants to cease to be a party to a native title determination proceeding must, in the circumstances that prevail in this case, apply to the Court for leave to withdraw from the proceeding.

3. Section 84(3) of the Native Title Act 1993 (Cth) provides as follows:

   Another person is a party to the proceedings if:

   (a)any of the following applies:

   (i)the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

   (ii)the person claims to hold native title in relation to land or waters in the area covered by the application;

   (iii)the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

   (b)the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

   (i)within the period specified in the notice under section 66; or

   (ii)if notice of an amended application is given under paragraph 66A(1A)(e)–within the period specified in the notice under that paragraph.

4. In support of its application for leave to withdraw from the proceeding, Greenbushes relies upon the affidavit of Ms Katherine Perincek.

5. Ms Perincek has deposed that she is a solicitor who has the conduct of this proceeding on behalf of Greenbushes.  Ms Perincek went on to depose that Greenbushes had become subject to a scheme of arrangement and deed of company arrangement.  Ms Perincek, also, deposed that she had conducted a search of the register of mining tenements maintained by the Western Australian Department of Mines and Petroleum which showed that Greenbushes no longer held any mining tenements in Western Australia.  Greenbushes, said Ms Perincek, did not, therefore, hold any interest in land which might be affected by the native title determination application which is the subject of the native title determination proceeding No WAD 6006 of 2003.

6. I accept that Greenbushes, therefore, no longer has an interest which qualifies it under s 84(3)(a)(iii) of the Native Title Act, to continue to be a party to the native title determination proceeding No WAD 6006 of 2003.

7. Accordingly, I will give Greenbushes leave to withdraw from this proceeding and will make orders in terms of the orders sought in the interlocutory application.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       17 April 2012