Phillips v State of Western Australia

In the case of Phillips v State of Western Australia, the State of Western Australia moved to have three applications for determinations of native title struck out. The principal issue was whether the applications should be dismissed because, on 22 December 1999, a delegate of the Native Title Registrar decided not to accept the applications for registration on the Register of Native Title Claims. The first respondent contended that the court should exercise its power under s 86(c) of the Native Title Act 1993 (Cth) to adopt the delegate’s decision and dismiss the application on the basis that it did not disclose a reasonable cause of action. The court considered the relevant provisions of the Act, including s 146 which conferred a similar discretion on the National Native Title Tribunal. However, the court found that the circumstances in this case were sufficiently different from the cited precedent to warrant a different conclusion.

The court held that the applicants’ case was not hopeless and bound to fail, even assuming all facts asserted in the application were made out at trial. While there might be factual matters to be resolved, the application had not been shown to be clearly untenable and one that could not possibly succeed. The court concluded that the motion should be dismissed, and the first respondent’s motion was accordingly dismissed.