Donnelly v Registrar, National Native Title Tribunal

[2000] FCA 962

FEDERAL COURT OF AUSTRALIA

Donnelly v Registrar, National Native Title Tribunal [2000] FCA 962

ANDREW DONNELLY v REGISTRAR, NATIONAL NATIVE TITLE TRIBUNAL AND MINISTER FOR LAND & WATER CONSERVATION & ORS

N 6073 OF 1998

HELY J
7 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6073 OF 1998

BETWEEN:

ANDREW DONNELLY
APPLICANT

AND:

REGISTRAR, NATIONAL NATIVE TITLE TRIBUNAL
FIRST RESPONDENT

MINISTER FOR LAND & WATER CONSERVATION & ORS
SECOND RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

7 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for interlocutory relief is refused.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6073 OF 1998

BETWEEN:

ANDREW DONNELLY
APPLICANT

AND:

REGISTRAR, NATIONAL NATIVE TITLE TRIBUNAL
FIRST RESPONDENT

MINISTER FOR LAND & WATER CONSERVATION & ORS
SECOND RESPONDENT

JUDGE:	HELY J
DATE:	7 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By letter dated 30 June 2000 the National Native Title Tribunal (“the NNTT”) notified the applicants that the delegate had not accepted the application for registration under s 190A of the Native Title Act (Cth) 1993 (“the Act”).  The decision was made on 29 June 2000.  Accordingly, the application had been removed from the Register of Native Title Claims.  Table A Part 4 cl 9 provides for the removal of the claim from the Register if it fails the test in s 190A of the Act.

2. This afternoon the applicants applied for interlocutory relief in relation to that decision pending the hearing of an application for a review of that decision under s 190D(2) of the Act.

3. The relief which is sought is first, an order staying the decision of the delegate until further order and second, an order that the Native Title Claim 97/21 be immediately replaced on the Register until further order.  That application was supported by an affidavit of Mr Donnelly of 7 July 2000 which sets out some of the history of the matter.  It also asserts that Mr Donnelly was affronted by the misleading and factually incorrect reasons given for the claim failing certain items in the application of the registration test.  It also asserts that he was denied natural justice or procedural fairness in unspecified respects.  It further asserts that the delegate had not applied himself with due diligence in coming to his decision.  Clause 10 of this affidavit reads as follows:

   “The removal of the claim from the Native Title Claim Register has severely prejudiced me in relation to complex legal matters in the Land and Environment Court and other native title dealings in relation to illegal mining developments on traditional land of my people.”

4. Very short notice of the making of this application was given to the State Minister and to the Registrar of the National Native Title Tribunal.  Mr Searle conditionally appeared this afternoon for the State Minister and Mr Bezzi appeared for the NNTT.  Mr Searle foreshadowed that at an appropriate time his current instructions were to make an application that the State not be joined as a party to these proceedings, as is contemplated by Order 78 rule 12 subrule 3.

5. I have not had time even to read completely the decision of the delegate.  All that I have had time to do is to look at it cursorily.  Nothing has been placed before me which would amount to a demonstration of a prima facie case of an entitlement to have that decision set aside, nor has anything been placed before me which would justify the granting of urgent interlocutory relief of the type sought, even assuming that I have the power to grant such relief. Whether I have that power or not strikes me as being a question not without its complexities and time has simply not permitted any proper investigation of that issue.

6. Assuming in Mr Oshlack's favour the existence of that power, in my view, he has not made out a case for its exercise.  The decision of the delegate is in the nature of a decision in rem; it is a decision in the area of public law which has an impact beyond its impact upon the applicant.  In my view, one starts with a presumption that the decision ought not to be interfered with unless there is a demonstration of a case to that effect.

7. I propose to treat the Notice of Motion which is before me as including an application for review of the Registrar's decision and I am prepared to list that for directions on Tuesday of next week, for the purpose of sorting out who should be parties to that application for review including Mr Searle's foreshadowed application that the State Minister ought not to be a party.

8. I would then propose to fix a timetable which would have the result that the application for review of the Registrar's decision can be heard as soon as is reasonably practical, but in a timeframe which would accord Mr Oshlack sufficient opportunity of preparing and presenting his case, as well as giving to the respondents sufficient opportunity to prepare their case in reply.

9. I refuse the application for interlocutory relief.  I do so upon the basis that if at some later point in time the applicants can demonstrate the existence of a power on my part to grant interlocutory relief, and if they can demonstrate by evidence the appropriateness of my exercising that power, then a further application can be made.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            18 July 2000

Mr Oshlack appeared on behalf of the applicant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 July 2000
Date of Judgment:	7 July 2000
Mr Searle made a conditional appearance on behalf of the State Minister