Ryder v State of Western Australia

[2012] FCA 77

FEDERAL COURT OF AUSTRALIA

Ryder v State of Western Australia [2012] FCA 77

Citation:		Ryder v State of Western Australia [2012] FCA 77
Parties:		DORIS RYDER & OTHERS v STATE OF WESTERN AUSTRALIA & OTHERS
File number:		WAD 6095 of 1998
Judge:		GILMOUR J
Date of judgment:		2 February 2012
Legislation:		Native Title Act 1993 (Cth) Federal Court Rules 2011 (Cth), r 26.12(4)
Date of hearing:	2 February 2012
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	8
Counsel for the Applicant:	Mr S Blackshield
Solicitor for the Applicant:	Kimberley Land Council Aboriginal Corporation
Counsel for the Respondent:	Ms A Preston-Samson
Solicitor for the Respondent:	State Solicitor's Office

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 6095 of 1998

BETWEEN:	DORIS RYDER & OTHERS Applicant
AND:	STATE OF WESTERN AUSTRALIA & OTHERS Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	2 FEBRUARY 2012
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant, pursuant to r 26.12(4) of the Federal Court Rules 2011 (Cth), be granted leave by the Court to file a Notice of Discontinuance (Form 48) in relation to the Lamboo native title determination application (WAD 6095 of 1998).

2.No order be made 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 6095 of 1998

BETWEEN:	DORIS RYDER & OTHERS Applicant
AND:	STATE OF WESTERN AUSTRALIA & OTHERS Respondent

JUDGE:	GILMOUR J
DATE:	2 FEBRUARY 2012
PLACE:	PERTH

REASONS FOR JUDGMENT

1. In this matter, I have an application that the applicant, pursuant to rule 26.12(4) of the Federal Court Rules 2011 (Cth), be granted leave by the court to file a Notice of Discontinuance in relation to the Lamboo native title determination application and, secondly, that there be no order made as to costs. The application is supported by affidavits of the following, each of whom is a named applicant for the Lamboo Native Title Claim Group:

   •     Winnie Yeeda, affirmed on 18 October 2011;   

   •     Lynette Chungella, also known as Lennie Manson, affirmed on 14 October 2011; 

   •     Stan Brumby, affirmed on 14 October 2011;

   •     Mark Gordon, affirmed on 17 October 2011; 

   •     Kimberley Baird, affirmed on 19 October 2011; 

   •     A further affidavit of Winnie Yeeda, sworn 30 November 2011.

2. There is also an affidavit of    Katie O’Rourke affirmed on 8 December 2011.  Ms O’Rourke is employed by the Kimberley Land Council, Aboriginal Corporation (KLC) as a senior legal officer. 

3. Ms O’Rourke attended a meeting of the Lamboo Claim Group on 14 October 2011, the purpose of which was to seek instructions concerning the filing of a native title claim to discontinue the Lamboo claim.  The Lamboo claim covered a significant portion of the Jaru People’s traditional country.

4. Prior to that meeting, the KLC had sent notices to the Lamboo claimants, which provided that it would be seeking instructions from the Lamboo Native Title Claim Group to discontinue the Lamboo claim.  There was an error in the date, but that was corrected by a further amended notice that was circulated. 

5. Moreover, at a separate meeting of the Jaru people, it was agreed that the Jaru claim group, according to the decision-making process adopted by them, that a claim should be filed on behalf of the Jaru people, which included the present Lamboo native title claim.  Many of the persons present were also members of the Lamboo claim.  It is against this background that the application for discontinuance has been brought. 

6. Finally, there is an affidavit by Mr Tony Fitzgerald, affirmed on 8 December 2011, which goes into the details of how the relevant meetings were convened, including the notice given and the procedure adopted at the Jaru meeting, all of which I regard as having been appropriate in the circumstances and that relevantly, due notice was given to the persons to whom notice was required to be given.

7. There are several affidavits of those persons who are presently named applicants in the Lamboo application, who attended a meeting of the Lamboo Native Title Group on 14 October 2011 at Burks Park, near Halls Creek.  At that meeting, members of the Lamboo Native Title Claim Group unanimously agreed to discontinue the Lamboo native title claim, and each of them positively affirmed their support for the present application, namely, that the Lamboo native title claim be discontinued. 

8. In all of those circumstances, I am satisfied that there is a proper basis for leave to be given for the discontinuance of the present claim, and there will, accordingly, be orders in terms of the interlocutory application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       10 February 2012