Josephine Forrest and Ors on behalf of the Yi-Martuwarra Ngurrara Native Title Claimants v State of Western Australia
[2019] NNTTA 43
•25 June 2019
NATIONAL NATIVE TITLE TRIBUNAL
Josephine Forrest and Ors on behalf of the Yi-Martuwarra Ngurrara Native Title Claimants v State of Western Australia [2019] NNTTA 43 (25 June 2019)
Application No: | WO2018/0833 |
IN THE MATTER of the Native Title Act 1993 (Cth)
- and -
IN THE MATTER of an inquiry into an expedited procedure objection application
Josephine Forrest, Benjamin Laurel, Malcom Moora, Harry Yungabun, Peter Clancy, Bernadette Williams, Mervyn Numbagardie, Elsie Dickens, Dunba Nunju, Claude Forrest, Sammy Costain on behalf of the Yi-Martuwarra Ngurrara Native Title Claimants (WC2012/002)
(“Yi-Martuwarra Ngurrara”)
- and –
Yanunijarra Aboriginal Corporation RNTBC
(“Yanunijarra”)
- and -
G E Resources Pty Ltd
(“GE”)
- and -
State of Western Australia
(the “State”)
DECISION TO DISMISS OBJECTION APPLICATION
Tribunal: | The Hon John Dowsett AM, QC President |
Place: | Brisbane |
Date: | 25 June 2019 |
Catchwords: | Native title – future act – proposed grant of exploration licence – expedited procedure objection application – request to amend form – objection lodged after determination of the claim – purported objector no longer a ‘native title party’ at time of lodgment – ‘administrative error’ – no power to amend – Tribunal not entitled to deal with objection – objection dismissed |
Legislation: | Acts Interpretation Act 1901 (Cth), ss 25C, 33(3) Federal Court of Australia Act 1976 (Cth), ss 22, 23 Federal Court Rules 2011 (Cth), r 39.05 Native Title Act 1993 (Cth), ss 3, 29, 30, 30A, 31, 32, 75, 76, 77, 109, 142, 148(a), 215(1), 237, 253 Native Title (Tribunal) Regulations 1993 (Cth), reg 4 |
Cases: | Azevedo v Secretary, Department of Primary Industries & Energy (1992) 35 FCR 284; [1992] FCA 84 Brown v Queensland (2005) 190 FLR 389; [2005] NNTTA 3 Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289 Holt v Manzie [2000] FCA 1857 Kanak v National Native Title Tribunal (1995) 61 FCR 103; [1995] FCA 1624 Northern Territory v Ward (2001) 167 FLR 398; [2001] NNTTA 163 Page v Northern Territory [2002] NNTTA 72 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Richard Evans [2000] NNTTA 84 Sebastian v Western Australia [2008] FCA 926 Smith v Western Australia (2001) 108 FCR 442; [2001] FCA 19 |
| Representative of Yi‑Martuwarra Ngurrara: | Mr A Romano of Kimberley Land Council |
| Representative of Yanunijarra: | Mr A Romano of Kimberley Land Council |
| Representative of GE: | Ms T Cole of Australian Mining and Exploration Title Services Pty Ltd |
| Representatives of the State: | Mr D McCloskey of State Solicitor’s Office Mr M Smith and Ms B Conway of Department of Mines, Industry Regulation and Safety |
REASONS FOR DISMISSING AN OBJECTION APPLICATION
BACKGROUND
Pursuant to s 29(1) of the Native Title Act 1993 (Cth) (the “Act”), on 22 June 2018 the State of Western Australia (the “State”) gave notice (the “notice”) of its intention to grant mining tenement E04/2533 (the “proposed grant”) to GE Resources Pty Ltd (“GE”). It is common ground that the proposed grant would be a future act for the purposes of Part 2, Division 3, Subdivision P of the Act. The “notification day” for the purposes of s 29(4) of the Act was 27 June 2018. The notice was sent to the Kimberley Land Council Aboriginal Corporation (“KLC”) and to “Yi-Martuwarra Ngurrara care of KLC” (“Yi-Martuwarra Ngurrara”). Yi‑Martuwarra Ngurrara was the name of a claim group which had, on 1 February 2012, applied to the Federal Court for a determination as to the existence of native title. On 12 March 2018 the Court determined that native title existed over part of the claimed area (the “determination”). See Forrest on behalf of the Ngurrara People v State of Western Australia [2018] FCA 289. On 13 August 2018, the Court determined that Yanunijarra Aboriginal Corporation (“Yanunijarra”) should hold the native title in trust for the identified native title holders. On 4 September 2018, details of the determination were entered in the National Native Title Register. At the same time, the name of Yi-Martuwarra Ngurrara was removed from the Register of Native Title Claims. Mr Alexander Romano, a solicitor employed by KLC, suggests in an affidavit that the notice was received by KLC on 26 July 2018. However both that notice and the notice sent to “Yi-Martuwarra Ngurrara care of KLC” are marked as having been received on 26 June 2018.
On 22 October 2018, KLC lodged an objection to the proposed grant (the “objection”), such objection being purportedly pursuant to s 32(3) of the Act. Yi‑Martuwarra Ngurrara was named as objector. Such an objection could only be made by a native title party. Pursuant to ss 29(2) and 30 a native title party may be either:
·a registered native title body corporate in relation to any land or waters affected by the proposed future act; or
·a registered native title claimant in relation to such land or waters.
The terms “registered native title body corporate” and “registered native title claimant” are defined in s 253 of the Act. A registered native title body corporate must be registered on the National Native Title Register. A registered native title claimant must be named in an entry on the Register of Native Title Claims.
Until 4 September 2018 Yi‑Martuwarra Ngurrara was a registered native title claimant in relation to the area claimed. When, on that date, its name was removed from the Register of Native Title Claims, it ceased to be a native title party with respect to the area of the proposed grant. Pursuant to s 30(1)(b) of the Act, upon the expiry of the three month period after the notification day, that is on 27 September 2018, Yanunijarra became a native title party with respect to the area over which it holds native title.
Although the registers were amended on 4 September 2018, as at 22 October 2018, the Tribunal’s mapping records had not been amended to reflect the amendment to the Register of Native Title Claims. In determining whether to accept an objection, the mapping records are used to identify overlaps between proposed grants and areas subject to native title claims and determinations. Because Yi‑Martuwarra Ngurrara’s claim was still shown on the overlap map, the objection was treated as having been made by a competent objector and was accepted. Given that Yi‑Martuwarra Ngurrara was no longer a native title party, the objection ought not to have been accepted.
Out of an abundance of caution, I should note that the Act did not require the State to notify Yanunijarra of the proposed grant. It was not, at the relevant time, a registered native title body corporate in relation to any part of the claimed area, and so was not then a native title party.
THE EXPEDITED PROCEDURE
Subdivision P is headed “Right to negotiate”. It is concerned with certain proposed future acts by government, including the grant of various mining exploration licences and permits. Native title parties, whose interests may be affected by proposed grants, may make submissions to the relevant government agency and negotiate in good faith with it and the proposed grantee. See ss 30A and 31. Where the relevant government agency considers that the proposed future act will not have an adverse effect on native title rights and interests, it may include in the notice, a statement that the proposed future act “attracts” the “expedited procedure”. See s 29(7). In the present case, such a statement was included in the notice.
Section 32 provides:
(1) This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
…
(2) If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
…
(3) A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
…
(4) If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
…
(5) If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
…
(6) At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
…
(7) At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
Section 237 provides:
A future act is an act attracting the expedited procedure if:
(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and
(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and
(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.
The inclusion in a notice of a s 29(7) statement means that a native title party will not be entitled to the procedural rights set out in s 31, unless it lodges a successful objection.
LODGMENT OF AN OBJECTION
Section 75 of the Act provides that a native title party may apply to the Tribunal by way of an “objection application” pursuant to s 32(3). There is an apparent inconsistency between s 32(3), which describes the relevant document as an “objection”, and ss 75‑77, where the document is described as an “application”. However it is clear that both terms refer to the same document. Sections 76 and 77 provide:
76 Material and fees to accompany applications
An application must:
(a)be in the prescribed form; and
(b)be given to the Registrar; and
(c)contain such information in relation to the matters sought to be determined as is prescribed; and
(d)be accompanied by any prescribed documents and any prescribed fee.
77 Action to be taken in relation to applications
If an application complies with section 76, the National Native Title Tribunal must accept the application.
…
The Native Title (Tribunal) Regulations 1993 (the “regulations”) prescribe the matters identified in s 76.
THE PRESENT PROCEEDINGS
In effect, the problem is that Yanunijarra has not lodged an objection in its own name, although it could have done so at any time after 27 September 2018 and before 27 October 2018. On 22 October 2018 Yi‑Martuwarra Ngurrara purported to lodge an objection, but was not then a native title party, and so was not entitled to do so.
By email dated 8 March 2019 KLC, on behalf of Yanunijarra, sought to “amend” the objection in order to “list” Yanunijarra as the objecting party. I am presently considering that application. In response, the State asserts that “the purported objection [should] not be accepted pursuant to s 77 or that it [should] be dismissed on the basis that the Tribunal is not entitled to deal with it”. In seeking dismissal, the State relies on s 148(a) of the Act. GE also submits that the objection should be dismissed pursuant to s 148(a).
THE EVIDENCE
Yanunijarra has provided three affidavits in support of its application to amend. The deponents are Mr Romano, Mr Ashley Mumford, also a solicitor employed by KLC, and Ms Jai Bin Swani, a trainee administrator employed by KLC. Mr Romano attaches correspondence passing between KLC and Mr Peter Murray, Yanunijarra’s chief executive officer. It seems that on 28 September 2018, Ms Bin Swani wrote to Mr Murray, advising him of the s 29 notice. Mr Murray’s email address clearly identifies him as being associated with Yanunijarra, but Ms Bin Swani continued to refer to the matter as “Yi-Martuwarra Ngurrara”. There is no evidence concerning any particular relationship between Mr Murray and Yi-Martuwarra Ngurrara. However Ms Bin Swani was apparently ready to deal with him in connection with the affairs of that “entity”.
On 2 October 2018, Mr Murray instructed KLC to file an objection to the proposed grant. It may be that such instruction concerned all objections in respect of which Yanunijarra had received s 29 notices. Mr Romano says that between 2 and 22 October 2018 (when the objection was lodged), he spoke to both Ms Bin Swani and another KLC employee, Ms Ania Maszkowski, confirming that Yanunijarra was the registered native title body corporate for the area in question. Again, it may be that Mr Romano’s “confirmation” concerned a group of objections. Mr Romano asserts that at the time of lodgment of the objection and thereafter, KLC has acted upon standing instructions from Yanunijarra to object to all expedited procedure notices and to act in subsequent inquiries. Mr Romano was informed that the Tribunal had accepted the objection. I made directions in this matter on 22 February 2019. On 6 March 2019, Mr Romano travelled to Fitzroy Crossing and took instructions concerning compliance with my directions. On 7 March 2019, he spoke to a number of people, taking instructions and proofing witnesses. On 8 March 2019, Mr Romano became aware of the error in the objection and informed the Tribunal accordingly.
Mr Mumford had day‑to‑day carriage of Yi-Martuwarra Ngurrara’s application up until the point at which Yanunijarra became the native title holder. During that time KLC had instructions from Yi-Martuwarra Ngurrara to lodge objections to all s 29 notices containing expedited procedure statements. However no objection was lodged concerning the proposed grant, prior to the claim being removed from the Register of Native Title Claims.
On 22 October 2018, Ms Bin Swani prepared the objection, having regard to the content of the s 29 notice. It seems that either she was unware of the determination, the subsequent appointment of Yanunijarra, its registration on the National Native Title Register and the removal of Yi‑Martuwarra Ngurrara’s name from the Register of Native Title Claims, or she did not appreciate the significance of those events. At para 8 of her affidavit, Ms Bin Swani says:
After confirming with Future Act Officer Ania Maszkowski that we had instructions to lodge objections to the expedited procedure for the YMN claimants I lodged the objection with the National Native Title Tribunal by email on 22 October 2018.
In the context of the affidavit as a whole, it is clear that the reference to the “YMN claimants” is to Yi‑Martuwarra Ngurrara. This paragraph is difficult to reconcile with para 10 of Mr Romano’s affidavit where he asserts:
On 2 October 2018, Ms Maszkowski sent me an email to ask whether she should lodge the objection in accordance with Mr Murray's instructions. Between 2 October 2018 and 22 October 2018 (the date the objection was lodged), I spoke to both Ms Maszkowski and Ms Bin Swani and confirmed that YAC was the registered native title body corporate for the area of the YMN determination where the Tenement was located. Annexed to this affidavit and marked AR-2 is a copy of the correspondence between 28 September and 2 October 2018 which is referred to in paragraphs [8][10] of this affidavit.
Mr Romano’s reference to “YAC” is to Yanunijarra. The reference to “YMN” is, again, to Yi‑Martuwarra Ngurrara.
Ms Maszkowski has not provided an affidavit.
Neither the State nor GE has filed any affidavit material. Both have filed submissions.
YANUNIJARRA’S SUBMISSIONS
Yanunijarra’s submissions contain a number of apparently disparate themes which are combined in numerous ways, making it difficult for me to avoid repetition. Those themes include:
·that the Tribunal has power to amend the objection, presumably to substitute Yanunijarra’s name for that of Yi‑Martuwarra Ngurrara;
·that in some way, Yanunijarra is a successor to Yi‑Martuwarra Ngurrara as a native title party;
·that Yanunijarra has complied substantially with the requirements of s 76 of the Act;
·that s 25 of the Acts Interpretation Act 1901 (Cth) (the “Acts Interpretation Act”) and the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 in some way assist Yanunijarra’s case;
·that the beneficial, remedial and/or protective purposes of the Act should lead to a favourable construction of the relevant provisions;
·that neither the State nor GE has suffered prejudice as a result of any failure to comply with the Act;
·that there is a “slip rule” which allows for amendment of the objection, and that it should be applied in the present case; and
·that s 109 of the Act should be applied so as to remedy any defects in form.
Yanunijarra apparently accepts that it is necessary that the objection be amended if it is to be effective for the purposes of s 32. There would otherwise be no point in making the application. The question is whether the Tribunal has power to amend. At para 1 of its submissions, Yanunijarra asserts that such amendment is sought in order to “correct an administrative error”. At para 2 of its submissions, Yanunijarra summarizes its case as follows:
2. Yanunijarra … submits that it should be listed as the Native Title Party in these proceedings as:
a) it is a registered native title body corporate in relation to the land affected by the proposed grant of E04/2533 to GE Resources (the Tenement) and succeeded the presently listed objector as the relevant native title party for the portion of the Tenement which overlaps with the native title determination of Forrest on behalf of theNgurrara People v State of Western Australia [2018] FCA 289 (YMN determination). The Native Title Party currently listed in Tribunal Proceedings WO2018/0833 is Josephine Forrest & Ors on behalf of Yi-Martuwarra Ngurrara who, until 4 September 2018, were registered native title claimants with respect to the area where the Tenement is located but should now, no longer be listed as a native title party in these proceedings;
b) the Objection was lodged on YAC’s behalf and in accordance with its instructions;
c) the error in the Objection Form 4 is one of form and not of substance. As there has been substantial compliance with the requirements of the NTA the Objection should have been accepted and should not be dismissed; and
d) considering the nature of the non-compliance with the requirements of the NTA and the Regulations, it would be inconsistent with the NTA to not allow for the amendment of the Form 4 and to dismiss the Objection for failure to comply with the Form 4.
The reference to “succession” in para 2(a) of the submissions is misleading, at least to the extent that it implies that any particular status or right passed from Yi‑Martuwarra Ngurrara to Yanunijarra. Yi‑Martuwarra Ngurrara derived its status as a native title party by virtue of the registration of the relevant native title claim in the Register of Native Title Claims and s 29(2) of the Act. It lost such status when its name was removed from that Register. Yanunijarra derived its status from the registration of details of the determination in the National Native Title Register and in accordance with s 30(1)(b).
Although Yanunijarra seeks leave to amend, it also asserts that it has complied substantially with the requirements of s 76, in which case one would expect that amendment would not be necessary. It is difficult to understand how it can assert substantial compliance with s 32(3), s 76 and the regulations. Although I accept that Yanunijarra instructed KLC to lodge an objection in its name, KLC simply did not do so. I shall return to this matter. At paras 18‑24, Yanunijarra seems to submit that substantial compliance may be a ground for amendment, a proposition which I find difficult to accept.
At paras 25‑33, Yanunijarra makes a number of further submissions which seem not to go much further than the submissions outlined above. At para 34, Yanunijarra submits that there having been substantial compliance, the objection was correctly accepted and should not be dismissed. Nonetheless, it submits that it should be allowed to amend the objection so that it appears as the objector. It also asks the Tribunal to “exercise its discretion to amend the parties to these inquiry proceedings”, apparently by virtue of s 109 of the Act which provides:
…
(1) The Tribunal must pursue the objective of carrying out its functions in a fair, just, economical, informal and prompt way.
…
(2) The Tribunal, in carrying out its functions, may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any party to any proceedings that may be involved.
…
(3) The Tribunal, in carrying out its functions, is not bound by technicalities, legal forms or rules of evidence.
At least some of these submissions are patently untenable. I therefore propose to deal generally with them without, at this stage, identifying the responses by the State and GE. To the extent necessary, I shall do so at a later stage.
Substantial compliance, the Acts Interpretation Act and Project Blue Sky
In paras 4‑10 of its submissions, Yanunijarra deals with the statutory requirements for a valid objection and the question of substantial compliance. At paras 4 and 5 of its submissions, Yanunijarra submits that it has satisfied the requirements for a validly lodged objection by virtue of:
·its being a native title party; and
·its lodgment of the objection within the prescribed time and in the required form.
The submission seems to depend upon either, or both of two propositions. The first is that the objection was lodged by Yanunijarra, or on its behalf. The second is that Yanunijarra can, in some way, succeed to whatever position Yi‑Martuwarra Ngurrara may have acquired by lodging its purported objection. As to the first proposition, there is no evidence that Yanunijarra ever authorized or asked Yi‑Martuwarra Ngurrara to act on its behalf, or in its name. There is no evidence that the former was legally capable of engaging an agent, or that the latter was legally capable of accepting such engagement. Nothing in the Act suggests that an objection may be lodged in the name of an agent. The point is that KLC did not carry out Yanunijarra’s instructions.
The second proposition seems to depend upon the note following s 30(2) of the Act. The note states:
If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.
The note should be understood as a broad statement concerning the effect of s 30. As I have demonstrated above, nothing passed from Yi‑Martuwarra Ngurrara to Yanunijarra.
Yanunijarra then submits that pursuant to the decision in Project Blue Sky and s 25C of the Acts Interpretation Act, it need only comply substantially with any formal requirements of the Act, in the present case, s 76 of the Act, reg 4 of the regulations and form 4 as prescribed in the regulations. Section 25C provides:
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
The decision in Project Blue Sky is not directly concerned with s 25C. Prior to that decision, the courts had frequently distinguished between “mandatory” and “directory” statutory requirements in connection with administrative decisions. The effect of the distinction was that a failure to comply with the former would lead to any decision being invalid, whilst failure to comply with the latter would not, provided that there had been substantial compliance with such requirement. In Project Blue Sky, the majority of the High Court said at [93]:
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
[Footnotes omitted.]
Section 76 of the Act contemplates there being a prescribed form. Section 215(1) authorizes the making of regulations, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
In s 253 of the Act, the term “prescribed” is defined to mean “prescribed by the regulations”.
Regulation 4 of the regulations requires that an application pursuant to s 76(a) be in form 4. Form 4 relevantly requires that an objection contain:
2. Address of the objector.
3. Address for service of objector, including a telephone number and facsimile number (if any).
4. Name and address of the representative of the objector (if any) including a telephone number and facsimile number (if any).
5. Whether the objector is the registered native title body corporate or a registered native title claimant.
6. The government that issued the notice and the date of the notice.
7. A statement why the objector believes that the proposed act is not an act attracting the expedited procedure that includes a statement of the likely impact of the act on community or social activities of the native title holders, areas or sites of particular significance and any land or waters concerned.
8. An outline of the type of evidence that the objector will produce to the National Native Title Tribunal.
9. Any other relevant information.
Yanunijarra submits that s 76(c) goes only to “those parts of the prescribed form (the Form 4) which are directed at the criteria in s 237 of the [Act]”. It further submits that s 76(c) addresses only “the criteria against which [the Tribunal] assesses whether a future act [attracts] the expedited procedure”. The submission seems to be that s 76(c) does not require that the name of the objector appear in the objection. The submission is untenable. Form 4 requires that the required information be set out in a standardized way. Failure to comply with that format would not necessarily mean that there had been less than substantial compliance with the statutory and regulatory requirements. If, for example, the name of the objector appeared in para 7 or para 8, but not in para 1, there might be substantial compliance. However, where the objector’s name appears nowhere in the objection, in my view, there has not been substantial compliance. Indeed, the information provided in paras 7 and 8 can only be meaningful if the identity of the objector is known.
In any event Yanunijarra’s reliance on s 25C of the Acts Interpretation Act fails to respond to the primary complaint made by the State and GE. It is not that Yanunijarra failed to comply with the formal requirements of the Act and regulations, but that the named objector was simply incompetent to object. Yanunijarra seeks to avoid a finding of incompetence upon the basis that, in some way, the objection can be treated as having been lodged on its behalf. However there is no evidence that it authorized an application, other than an application in its own name. The name on the objection has no similarity to Yanunijarra’s name. It is not to the point that another party could, by reference to other records, identify the error. A misdescription of a name may not always amount to a failure substantially to comply. Substantial compliance, in this case, involved identification of the objector, although absolute precision may not have been necessary. However the use of an entirely different name could not amount to substantial compliance except, possibly, where there has been a change of name. The process prescribed in s 30 cannot be accurately described as a change of name.
Beneficial legislation
At paras 11‑17, Yanunijarra addresses the construction of beneficial legislation as it affects substantial compliance. It is true that the objection procedure must be seen in the context of the Act as a whole. I accept that such procedure is designed to protect native title and its enjoyment by traditional owners. However statutory limitations upon the availability of particular protective measures cannot simply be disregarded. Clearly, the statute limits the availability of the objection procedure to circumstances in which:
·a native title party as defined,
·lodges an objection in the prescribed form,
·within the prescribed time.
Parliament has chosen so to limit the extent of the protection offered. There is no logical basis for simply ignoring a statutory limitation upon a beneficial provision. Nor can there be any basis for straining the words of the section in order to relieve all potential objectors of the consequences of non-compliance.
In my view, on the proper construction of s 32, correct identification of the objector is essential to the validity of an objection. Unless the objector is identified, the document will make little or no sense, or be actively misleading.
Power to amend
At paras 18‑24 of its submissions Yanunijarra addresses the Tribunal’s alleged power to amend and/or to “remedy [partial non‑compliance] and accept the application”. Yanunijarra submits that the “weight of [Tribunal] precedent is such as to demonstrate clearly that the view of the [Tribunal] in the past has been that certain Form 4 compliance requirements should be interpreted so as to allow for amendment of the Form 4 in circumstances where the error made is not substantive”. It submits that I am not bound by such decisions, but that I should maintain consistency. There are three clear answers to that proposition. First, I have explained that any error was clearly “substantive” in the sense that it could not be said that there had been substantial compliance with the Act. Second, although consistency is generally a good thing, it is not an end in itself. In procedural matters, a Tribunal Member might well value consistency over his or her own personal opinion. Similarly, where there is more than one available view of a particular provision, a Member may prefer to follow earlier Tribunal decisions, leaving it to the Court to correct any error. However, in some cases, a Member may feel obliged to act upon his or her own views. Thirdly, Yanunijarra has not demonstrated any consistent approach to the relevant questions. I discuss the relevant decisions below.
Yanunijarra looks to the “context of the entire [Act], and its beneficial purpose”. It refers to the preamble to the Act and to s 3, both of which concern the objects of the legislation. It refers to the decisions of the Full Court of the Federal Court in Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 where the Court said:
[T]he preamble recognises the disadvantaged status of Aboriginal people as a group and the need for a special procedure for the just and proper ascertainment of native title. The legislation is clearly remedial in character and thus should be construed beneficially, so as to give the most complete remedy which is consistent with the actual language employed ... . It is therefore appropriate to adopt a construction that avoids harsh consequences flowing from a failure to observe procedural requirements specified in the Act.
Yanunijarra refers also to the decision of the Federal Court in Smith v Western Australia (2001) 108 FCR 442 at [23] where the Court said:
… The Act is beneficial and the right to negotiate regime is an element of the protection of native title which is one of the main objects of the Act. That protection is not to be narrowly construed. The term “likely” in this context is not directed to a judgment on the balance of probabilities as to interference or major disturbance. Such a judgment would potentially permit, without benefit of any negotiation, quite significant risks (of that interference or major disturbance) to be incurred. …
I accept that the Act is intended to help in ameliorating a long history of wrongs against Australia’s indigenous people. I accept that a broad approach should be taken to provisions designed to bring about that effect. However, as I have already said, one must distinguish between the protection offered and the statutory procedure for taking advantage of such protection. The s 32 procedure regulates the way in which the protective and beneficial provisions of the Act may be engaged. The procedure is by no means onerous. Further, there is no ambiguity in the language of the relevant provisions. Both Yi‑Martuwarra Ngurrara and Yanunijarra had the benefit of KLC’s assistance. I see no basis for departing from the plain meaning of s 32. I do not accept that to name as objector a group which is no longer qualified to object is a “minor defect”. In any event, if Parliament had intended that the Tribunal have a general power to exempt from compliance with statutory regulatory procedures, it would surely have said so. Such a legislative provision is, by no means, uncommon.
Yanunijarra also refers to various Tribunal decisions said specifically to establish that the Tribunal has a general power to amend the objection. Three of the cases were decisions of former Member Sosso. The first is Northern Territory v Ward (2001) 167 FLR 398. That case concerned the adequacy of the information supplied in connection with paras 7 and 8 of the form 4. I note that at [15], Member Sosso asserted that there is a “discretion” to accept a form 4 application pursuant to ss 75‑77. I see no basis for that view. The Tribunal must consider whether there has been substantial compliance with the requirements in form 4. Where substantial compliance is demonstrated, the objection must be accepted. In the absence of substantial compliance, there is no objection as contemplated by s 32(3).
Yanunijarra relies upon a passage at [68]‑[69] of that decision. The Member there suggested that not every error or omission in a name or address would lead to invalidity. However he noted the possibility that absence of a name or address might have that effect. In my view there is no real difference between the absence of a name and the use of a wrong name. If anything, the latter situation is potentially more serious because the “omission” of the correct name may not be apparent. I disagree with the Member’s reference to absence of prejudice to other parties. Absence of prejudice is not a basis for implying a power to amend. Such a consideration is irrelevant where there has been substantial compliance. Where there has not been substantial compliance there is no objection, and prejudice to other parties will again be irrelevant. Where the named objector is not a native title party, the document is not an objection as contemplated by s 32. In the absence of an objection, there is no matter for the Tribunal to address.
The second case is the decision of former Member Sosso in Page v Northern Territory [2002] NNTTA 72. In that case the objector was wrongly described as “Michael Porter” when his name was “Michael Page”. However it was clear from the objection that the objector was acting on behalf of an identified native title claim group. Although I disagree with much of the Member’s reasoning, I have no doubt that he was correct in holding that the error did not invalidate the objection. The reasoning at [14] is, with respect, misconceived. The Member makes broad assertions as to the circumstances in which courts may allow amendments to correct errors in the names of parties. Those cases do not assist in identifying the effect to be given to an objection which does not substantially comply with statutory and regulatory requirements. Nor does it assist in identifying the Tribunal’s powers.
The third case is the decision of former Member Sosso in Brown v Queensland (2005) 190 FLR 389. In that case, an objection was lodged by one of eleven persons comprising a native title party. There was no suggestion in the objection that he was acting on behalf of the group. Member Sosso accepted that, on its face, the objection was invalid. He considered that there was power to amend to add the names of the other group members but appears to have thought that such a step would not solve the problem because the notification period had expired. However he received evidence that the named objector had been acting with the authority of other group members and accepted the objection, holding that it complied with the requirements of s 76. Nonetheless he observed that:
If, in the future, I am presented with a Form 4 which is as manifestly inadequate as the one before me, I will not accept it.
The inconsistency is obvious. In any event, there is no basis for inferring that Yanunijarra authorized Yi‑Martuwarra Ngurrara to lodge the objection on its behalf.
Member Sosso’s assumption that there is a power to amend was based upon an earlier decision by former Deputy President Sumner in Re Richard Evans [2000] NNTTA 84. At [8] the Deputy President said:
It is my view that if a problem of this kind occurs in future it would be sufficient for the applicant to provide a letter amending the application to correct the technical error without the need to make a completely fresh amended application. Although there is no specific power in the Act covering amendments to right to negotiate applications I think power must be implied to exist as a necessary adjunct to enable the Tribunal to properly carry out its functions and to operate in the manner set out in s 109 of the Act. For example, in the context of a future act determination application it would hardly be fair, informal or consistent with the prompt attention to the Tribunal’s business to require a fresh application to be lodged where an amendment to an application was required because technical errors were discovered in the information required to be provided. Whether amendment is appropriate to overcome defects in an application will need to be considered by the Tribunal at the time of acceptance of the application or, after acceptance, by a Member appointed to conduct the inquiry in a particular case. There will, of course, be cases where amendments cannot cure substantive non‑compliance with the Act or Regulations and the application cannot be accepted or must be dismissed for want of jurisdiction. This may particularly be the case where amendments are sought to be made to objection applications after the time to make them has expired. As there is no time limit within which future act determination applications must be made the problem may not be so great in these cases.
With all respect, I do not accept that the Tribunal needs a power to amend in order to comply with the requirements of s 109. Nothing in the Act suggests that an objector is limited to the content of the objection as filed. Indeed, objectors routinely assert, in their objections, their inability to provide a definitive list of their concerns, alleging that the generality of the relevant s 29 notice prevents them from doing so. Of course, the Tribunal must afford procedural fairness to all parties, but formal amendment of the objection is not necessary in order to achieve that goal. On the other hand, it is necessary that the Tribunal’s jurisdiction be invoked within the notification period, and in accordance with the prescribed method. All that a potential objector need do is comply substantially with form 4.
In summary, the cases cited demonstrate a sensible approach to errors, notwithstanding my rejection of some of the reasoning. I see no reason for finding an implied power to allow amendment outside of the notification period. An amendment within time raises no problem as there is no apparent bar to a second application within time. An objection will only rarely be fatally flawed. To find an implied power to amend after the end of the notification period is to allow hard cases to make bad law.
In fact, a paradox lies at the heart of any submission that the requirement for informality in s 109 necessitates a power to amend. In effect, Yanunijarra submits that in order to conduct proceedings informally, there must be a formal amendment to the objection. It is difficult to see why, if the objection is validly made, it would ever be necessary to amend it. It is only invalidity which would lead to the need to amend. However the Act offers no basis for allowing such amendment, at least after expiry of the notification period. By asserting that an amendment is necessary, Yanunijarra recognizes that the requirements of s 32 must be observed: that there must be an objection, that it must be capable of being construed as an objection lodged by it, or on its behalf, and it must otherwise comply with statutory and regulatory requirements.
Such an objection is necessary in order to engage the jurisdiction of the Tribunal and to identify the parties. The objection also identifies, in a general way, the basis for the objector’s challenge to the s 29(7) statement. In filing an objection, a native title party seeks to avoid the adverse consequences of the inclusion in the notice of the s 29(7) statement. I can see justification for informality in the conduct of objection proceedings which have been properly commenced. However I see no basis for dispensing with the prescribed requirements for engaging the Tribunal’s jurisdiction. Section 109(1) should be understood as addressing the Tribunal’s conduct of proceedings of which it is properly seised, not authorizing the dispensation from compliance with statutory requirements for engagement of its jurisdiction.
Agency, succession, prejudice and error
I have already dealt with some of the matters raised in paras 25‑29 of Yanunijarra’s submissions. As to para 25, it is by no means clear that either Ms Bin Swani or Ms Maszkowski was aware of the correct identity of the objector. Mr Romano says that they were so aware, but Ms Bin Swani says otherwise. I see no reasonable basis for preferring either witness to the other. As to para 26, it may well be a feature of KLC’s practice that it takes “standing instructions” concerning the lodgment of objections. However it does so at its own risk, and that of each client. Whilst I accept Mr Romano’s evidence concerning his understanding of his instructions, the emails from Ms Maszkowski and Ms Bin Swani are quite ambiguous. Whether or not Mr Romano held instructions to file an objection on behalf of Yanunijarra, his staff did not carry out those instructions. There is no suggestion that Yanunijarra instructed Mr Romano to file the objection in Yi‑Martuwarra Ngurrara’s name as some sort of agent, nor that Yi‑Martuwarra Ngurrara agreed so to act. In any event there is nothing in the Act to justify such a course.
At para 27 Yanunijarra seems to submit that there can be no prejudice to the State or GE as they are simply faced with the same objection as would have been lodged had the mistake not been made. There are two answers to that submission. First, as I have said, if the proper characterization of events is that no valid objection has been lodged, then the question of prejudice is irrelevant. Second, there is no suggestion that either Yanunijarra or Yi‑Martuwarra Ngurrara gave instructions as to the substantive matters required to be included in paras 7 and 8 of the objection. The reliance upon standing instructions suggests otherwise. Neither Ms Maszkowski nor Ms Bin Swani claims to have spoken to either Yi‑Martuwarra Ngurrara or Yanunijarra about those matters. Nor does Mr Romano suggest that he did so prior to 6 March 2019. In those circumstances, it seems unlikely that any attempt was made by Yanunijarra to provide the necessary information. It is difficult to speculate about prejudice, if Yanunijarra has not disclosed the basis of its objection.
At paras 28‑29 Yanunijarra seeks to excuse an “error” by the “administration officers”, and asserts that they were aware that Yanunijarra was the proper objector. As I have said, Ms Bin Swani’s evidence is not to that effect. It also submits that the administration officers failed to check whether the native title party identified on the notice was still a native title party. I accept that there is potential for error of this kind in the period immediately after a native title determination. That an error may be understandable does not necessarily mean that its consequences can be undone. The very risk of such error should lead to greater care and closer supervision, especially of non‑legal staff.
A summary
Paragraphs 30‑34 are headed “No prejudice suffered”. However those paragraphs revisit most of the issues already canvassed. I need only comment on one aspect.
An alternative argument appears to be that a “slip rule” may be used to justify amendment. That term is generally used to describe a provision frequently found in rules of court. Such rules often provide that the relevant court may, in certain circumstances, vary or set aside its own earlier order, even if the order be final. It applies only to judgments or orders of courts, and hence has no present application, although it may apply to the correction of an error in a judgment or order brought about by the error of a party. Superior courts of record have an inherent power, in certain circumstances, to revisit earlier orders. See Sebastian v Western Australia [2008] FCA 926 at [23]-[30] per Gilmour J. This inherent power is sufficient to justify a rule of court such as r 39.05 of the Federal Court Rules 2011, as are ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth). There is no basis for extending that power to the Tribunal. This submission is based on a fundamental misunderstanding of the slip rule.
One other matter
In connection with a possible power to amend, I have considered whether s 33(3) of the Acts Interpretation Act might be a basis for such a power. No submission to that effect was made by any party. If the power to accept lodgment of an objection pursuant to s 77 confers a power to make, grant or issue an instrument of a legislative or administrative character, it would follow that there is power to repeal, rescind, revoke, amend or vary any such instrument. In this context an instrument is “a formal legal document whereby a right is created or confirmed, or a fact recorded; a formal writing of any kind, as an agreement, deed, charter or record, drawn up and executed in technical form”. See the Shorter Oxford English Dictionary, cited in Azevedo v Secretary, Department of Primary Industries & Energy (1972) 35 FCR 284 per French J at 299‑300. The New Shorter Oxford English Dictionary gives a more concise meaning, namely “[a] formal legal document … . A formal and duly authenticated record, drawn up by a notary public, of any transaction”. The only document which might be an instrument for present purposes would be the objection. It is difficult to see any sense in which the Tribunal could be said to have made or granted it. The verb “issue”, used in the present context, means, “[g]ive or send out authoritatively or officially, publish, emit, put into circulation (coins, banknotes, etc)”.
In post‑Judicature Act rules of court, writs of summons were issued, as were originating summonses. On the other hand petitions were presented or filed. Where a motion was to be moved on notice, notice of motion was filed. See, for example, the Rules of the Supreme Court of Queensland as at 31 January 1966. In this context the thing issued is generally a document prepared by a party, and validated by the court for service on another party. A writ of summons was, in effect, a royal command that the defendant appear to answer the plaintiff’s claim. There appears to be no requirement in the Act for service of the objection on other parties. Section 142 of the Act provides:
Subject to subsection 151(2) and sections 154, 154A and 155, the Tribunal must ensure that every party is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in making a determination in the inquiry and to make submissions in relation to those documents.
No doubt, the Tribunal would, at some stage, provide the objection to the other parties. In so doing, it would be discharging its obligation under s 142. It is, however, difficult to characterize that action as “issuing” the objection. When the objection is accepted for lodgment, it initiates a procedure leading to a determination, but that is a different matter. I conclude that s 33(3) does not confer upon the Tribunal a power of amendment.
OTHER PARTIES’ SUBMISSIONS
I have anticipated most of the submissions advanced by the State and GE. I shall deal with those submissions as expeditiously as possible.
The State submits that I should not accept the objection pursuant to s 77. It has, of course, already been accepted. I doubt whether there is power to revisit the question. Alternatively, it submits that the objection should be dismissed pursuant to s 148(a). It points out that Yi-Martuwarra Ngurrara remains a native title applicant only in respect of part of the original claim area. That remaining area does not include any part of the proposed grant. Hence, as at 22 October 2018, Yi-Martuwarra Ngurrara had no standing to lodge an objection. It also submits that Yanunijarra is not a party to the “purported objection”, and therefore not entitled to apply to amend, and that it is not clear that Yi‑Martuwarra Ngurrara agrees to the proposed amendment. The State also submits that to amend to change the name of the objection goes beyond any power of amendment because it effectively allows another objection out of time.
The State submits that I should reject Yanunijarra’s reliance upon its claimed substantial compliance with form 4 and the beneficial purpose of the Act. It submits that Yanunijarra advances no specific basis for a construction of ss 29‑32 which would assist its case. Rather, Yanunijarra seems to submit that these considerations should, together, overcome the consequences of KLC’s deliberate action. In effect, the State submits that no aspect of ss 29‑32 creates any need to consider whether there was substantial compliance with the Act and regulations, or whether the beneficial purpose of the Act justifies departure from the plain meaning of the legislation. The characterization of KLC’s action as a “mere administrative error” is also an irrelevant consideration.
At para 15 of its submissions, the State submits that the absence of prejudice to it or to GE is irrelevant, given that the Tribunal has no jurisdiction to hear the matter in the absence of a valid objection. At para 16 the State submits that Yanunijarra’s purported reliance on a beneficial construction of s 109 assumes the validity of the acceptance by the Tribunal of the objection. It further submits that s 109 cannot be invoked in such a way as to extend the jurisdiction of the Tribunal beyond that expressly, or by necessary implication, conferred upon it. There is much in these arguments. However I have sufficiently addressed them in my consideration of Yanunijarra’s submissions.
GE has also made detailed submissions. At para 4.19, GE submits that I should find that:
·Ms Maszkowski and Ms Bin Swani subjectively intended that the objection be lodged on behalf of Yi-Martuwarra Ngurrara, and not Yanunijarra; and
·to the extent that there was an error, it was “gross” rather than “administrative”.
Concerning the first proposed finding, I accept that Mr Romano’s evidence and that of Ms Bin Swani are inconsistent. It seems probable that Ms Bin Swani subjectively intended to lodge in the name of Yi‑Martuwarra Ngurrara. However I can draw no such inference concerning Ms Maszowski’s intentions. I find myself unable to conclude that either woman was instructed to lodge the objection in the name of Yanunijarra, or that, if either was so instructed, she understood the instruction. There is no evidence which suggests any actual or implied agency. KLC simply did not carry out its instructions. It does not matter whether the error was gross, or administrative, or both.
At paras 4.20‑4.28, GE speculates at length concerning the instructions allegedly given by Yanunijarra to KLC. I have no reason to doubt that Yanunijarra had, in some way, indicated that KLC was to continue the practice of lodging objections as previously instructed by Yi-Martuwarra Ngurrara. However it does not follow that KLC carried out those instructions. At paras 4.2‑4.9, GE addresses the so‑called “administrative error”, referring to Mr Mumford’s affidavit. The affidavit deals only with the instructions given by Yi-Martuwarra Ngurrara to KLC. Notwithstanding GE’s concerns about this issue, I see no basis for doubting that KLC had such instructions from Yi‑Martuwarra Ngurrara, from the time of the receipt of the s 29 notice until it ceased to be a native title party. At para 4.34, GE submits that KLC ought to have lodged the objection prior to the determination, and has not explained why it failed to do so. Perhaps it was thought that such lodgment should be left until after Yanunijarra became a native title party. In any event, on my view of the case, those matters are irrelevant.
At paras 6.1‑6.6, GE effectively submits that whatever else happened, Yanunijarra did not lodge any objection. Such lodgment was effected by KLC. Although that submission may seem a little pedantic, it has merit. I accept that KLC was instructed to lodge an objection on behalf of Yanunijarra but did not do so. It lodged a document in the name of a purported objector, from whom it no longer held relevant instructions.
At paras 6.7‑6.13, GE addresses the question of substantial compliance. It points out that ss 29 and 30 distinguish between native title claimants and registered native title bodies corporate. The latter, by definition, hold native title. GE submits that the Act confers the right to object upon either a prescribed body corporate or a native title claimant, provided that, at the time of the objection, the relevant entity has the requisite relationship to the area to be affected by the proposed act. It further submits that it cannot have been Parliament’s intention that the two entities be treated as “an amalgam”. However this is not a case in which a valid objection was filed by a competent native title claim group, which group ceased to be a native title party and, at a later stage, a registered native title body corporate became a native title party pursuant to s 30(1)(b). Any “amalgamated” approach does not help, given that neither Yi‑Martuwarra Ngurrara nor Yanunijarra lodged an objection when entitled to do so and/or within the prescribed time.
GE also points out that in Holt v Manzie [2000] FCA 1857 at [19], Olney J said:
The Native Title Act makes no provision for the extension of the times specified in s.28(1) or s.30(1). Indeed, the obligation placed upon the Registrar by s.190A(2) coupled with the absence of any provision or explanation as to the effect in the event that the Registrar is unable to finish considering a claim by the end of 4 months after the relevant notification day is a clear indication of a legislative intention to require strict compliance with the time limits specified. To the extent that Parliament has made a clear expression of its intention, there is no scope for the Court to intervene to remedy what may appear to be a provision based upon a lack of understanding of the practical difficulties involved in complying with its requirements, however unjust the result may be in a particular case.
GE submits that there is no justification for taking a more indulgent view in applying s 32(3). I agree. I adopt the observations made by Olney J.
At paras 6.15‑6.16 GE deals with Yanunijarra’s submission concerning beneficial purpose. It submits that the purpose of the expedited procedure is not beneficial, but rather to provide balance amongst competing interests and that, in effect, the expedited procedure imposes a limit upon the rights conferred by s 31. In my view, the objection procedure is a beneficial or protective measure. However the limitations contained in ss 32 and 75‑77 provide a balance amongst the parties, so that the interests of the State, and those of the proposed grantee are taken into account, as well as those of the native title party or parties.
At paras 6.17‑6.19, GE accepts that invalidity does not necessarily flow from technical or typographical errors. Rather, it submits that a form 4 which is, on its face, invalid, cannot, and should not be accepted by the Tribunal. At para 6.19, there appears to be a factual error in GE’s submission. It asserts that Yi-Martuwarra Ngurrara lodged the objection out of time. As I understand the evidence, it was lodged within time, but after Yi-Martuwarra Ngurrara had ceased to be a native title party.
At paras 6.20‑6.23, GE addresses the question of KLC’s instructions. I have dealt with that matter.
YANUNIJARRA’S SUBMISSIONS IN REPLY
In Tribunal proceedings, there is a tendency to overuse, perhaps abuse the right of reply. Tribunal proceedings are not jury trials. The Tribunal may be trusted to keep in mind one party’s submissions in dealing with those of another party. It is neither appropriate, nor helpful to use the reply as a vehicle for repeating assertions previously made. In general, the reply should only deal with legal or factual issues raised by other parties, and not previously addressed by the replying party, or legal or factual errors in an opponent’s submissions.
Much of Yanunijarra’s reply simply revisits the facts of the case. Further, the reply is, to some extent, misleading. In particular, at para 11 Yanunijarra submits that GE accepts that the objection was lodged pursuant to its instructions. That is strictly true, but it is clear from para 4.22 of GE’s submissions that it asserts that Yanunijarra had instructed KLC to lodge an objection in Yi‑Martuwarra Ngurrara’s name. I do not accept that proposition. There is simply no evidence to that effect. Nonetheless the proposition cannot be converted into the proposition that GE accepts that Yanunijarra intended KLC to file an application on its behalf, a proposition which I accept, but GE does not. The point is abstruse, and probably of little importance.
Paragraphs 12‑16 of the submissions in reply are difficult to follow, at least partly because they tacitly assume that Yi-Martuwarra Ngurrara lodged a valid objection, notwithstanding the fact that at the date of lodgment, it was no longer a native title party. Those paragraphs may also be misleading by virtue of the approach taken to the construction of s 30. At paras 17‑23, Yanunijarra replies to GE’s submissions. I need not say anything further about those matters.
In paras 24‑25, Yanunijarra merely asserts that the “primary question” is whether there was substantial compliance with the relevant provisions of the Act and that, as there was substantial compliance, the Tribunal should exercise its discretion to amend the objection to list Yanunijarra as a native title party. I have found that there was no substantial compliance, and that there is no “discretion” to amend.
OUTCOME
No point will be served by revisiting the Tribunal’s acceptance of the objection for lodgment. It will be better if I proceed pursuant to s 148(a). I am satisfied that the Tribunal is not entitled to deal with the purported objection. In s 32, it is described as an “objection” and not an application. However it is clear from ss 75‑77 that it is also an application. Pursuant to s 148(a) I therefore dismiss that application. I also dismiss the application to amend the objection.
The Hon John Dowsett AM, QC
President
25 June 2019
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