Sambo v Western Australia

Case [2008] FCA 1575

FEDERAL COURT OF AUSTRALIA

Sambo v State of Western Australia [2008] FCA 1575

NATIVE TITLE – members of applicant in a native title determination claim did not cooperate with other members of the applicant ‑ whether a member of an applicant can be removed as a party by reference to O 6 r 9 of the Federal Court Rules

Native Title Act 1993 (Cth) ss 64(5), 66B, 66B(1)(a), 66B(1)(b), 251B
Native Title Amendment (Technical Amendments) Act 2007 (Cth)
Federal Court Rules O 6 r 9, O 80
Native Title Amendment (Technical Amendments) Bill 2007 (Cth),
Explanatory Memorandum

Chapman v Queensland (2007) 159 FCR 507
Butchulla People v Queensland (2006) 154 FCR 233
Doolan v Native Title Registrar (2007) 158 FCR 56
Daniel v State of Western Australia (2002) 194 ALR 278

DENNIS SAMBO AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS

WAD 65 OF 1998

SIOPIS J
22 OCTOBER 2008
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 65 OF 1998

BETWEEN:

DENNIS SAMBO AND OTHERS
Applicant

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

22 OCTOBER 2008

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The notice of motion dated 5 November 2007 is dismissed.

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


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 65 OF 1998

BETWEEN:

DENNIS SAMBO AND OTHERS
Applicant

AND:

STATE OF WESTERN AUSTRALIA AND OTHERS
Respondent

JUDGE:

SIOPIS J

DATE:

22 OCTOBER 2008

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The applicant in this proceeding for a native title determination in the Central West Goldfields region of Western Australia is comprised of seven persons.  They are Dennis Sambo, Elizabeth Sambo, Carlene Sceghi, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper.  There is a schism between the first five named persons, and Ms Wyatt and her brother, Mr Cooper.  The first five named persons seek by this application to have Ms Wyatt and Mr Cooper removed as “parties” to this proceeding.

    BACKGROUND

  2. Relations between the first five named persons and Ms Wyatt and Mr Cooper have broken down – this has been the case for sometime.  Ms Wyatt and Mr Cooper have stopped attending meetings of the applicant group.  They have opposed a proposal made by the rest of the members of the applicant group for the appointment of a trustee under a land use agreement that the applicant group entered into with Portman Iron Ore Limited on 12 July 2002.  In the absence of the appointment of a trustee, Portman has refused to make any payments under the agreement and has placed the amounts due in an interest bearing account.  The rest of the applicant group have applied to the Supreme Court of Western Australia for orders that the court appoint a trustee notwithstanding that Ms Wyatt and Mr Cooper refuse to consent thereto.  Ms Wyatt and Mr Cooper have sought separate representation in that proceeding.…

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Details
AGLC
Sambo v Western Australia [2008] FCA 1575
Case
[2008] FCA 1575
Decision Date

CaseChat Overview and Summary

The parties to this proceeding for a native title determination in the Central West Goldfields region of Western Australia are seven individuals who are collectively seeking to have two other individuals, Ms Wyatt and Mr Cooper, removed as parties to the application. The dispute arises from a breakdown in relations between the first five applicants and Ms Wyatt and Mr Cooper. The latter have ceased attending meetings, opposed the appointment of a trustee under a land use agreement, and failed to cooperate with the rest of the group in progressing the claim. The first five applicants have applied to the Supreme Court of Western Australia to appoint a trustee, and Ms Wyatt and Mr Cooper have sought separate representation in that proceeding. The first five applicants have now applied to the Federal Court for orders to remove Ms Wyatt and Mr Cooper as applicants.

The court was required to decide whether Ms Wyatt and Mr Cooper should be removed as parties to the application. The court noted that there was no provision in the Native Title Act 1993 for the removal of an applicant for native title. The court also noted that the first five applicants had not obtained the approval of a claim group meeting to authorise their removal of Ms Wyatt and Mr Cooper and to approve the applicant movers making this application for the replacement of the applicant, with a differently constituted applicant. The court further noted that convening a claim group meeting would involve considerable expense, time and other personal resources.

The court held that the notice of motion seeking orders that Ms Wyatt and Mr Cooper be removed as applicants and that the Register of Native Title Claims be amended accordingly should be dismissed. The court noted that there was no authority for the removal of an applicant for native title and that the first five applicants had not obtained the approval of a claim group meeting to authorise their removal of Ms Wyatt and Mr Cooper and to approve the applicant movers making this application for the replacement of the applicant, with a differently constituted applicant. The court further noted that convening a claim group meeting would involve considerable expense, time and other personal resources.

The court dismissed the notice of motion dated 5 November 2007. The court held that there was no authority for the removal of an applicant for native title and that the first five applicants had not obtained the approval of a claim group meeting to authorise their removal of Ms Wyatt and Mr Cooper and to approve the applicant movers making this application for the replacement of the applicant, with a differently constituted applicant. The court further noted that convening a claim group meeting would involve considerable expense, time and other personal resources.

Orders

Orders of the court

1. The notice of motion dated 5 November 2007 is dismissed.

Background

Background to the litigation

The applicant in this proceeding for a native title determination in the Central West Goldfields region of Western Australia is comprised of seven persons. They are Dennis Sambo, Elizabeth Sambo, Carlene Sceghi, Linda Champion, Nancy Wilson, Sue Wyatt and Victor Cooper. There is a schism between the first five named persons, and Ms Wyatt and her brother, Mr Cooper. The first five named persons seek by this application to have Ms Wyatt and Mr Cooper removed as “parties” to this proceeding.BACKGROUND Relations between the first five named persons and Ms Wyatt and Mr Cooper have broken down – this has been the case for sometime. Ms Wyatt and Mr Cooper have stopped attending meetings of the applicant group. They have opposed a proposal made by the rest of the members of the applicant group for the appointment of a trustee under a land use agreement that the applicant group entered into with Portman Iron Ore Limited on 12 July 2002. In the absence of the appointment of a trustee, Portman has refused to make any payments under the agreement and has placed the amounts due in an interest bearing account. The rest of the applicant group have applied to the Supreme Court of Western Australia for orders that the court appoint a trustee notwithstanding that Ms Wyatt and Mr Cooper refuse to consent thereto. Ms Wyatt and Mr Cooper have sought separate representation in that proceeding. There is also uncontradicted evidence that Ms Wyatt and Mr Cooper have taken a different view to the rest of the members of the applicant group in relation to other future act applications with the result that the intervention of the National Native Title Tribunal has been necessary. Further, it is said that Ms Wyatt and Mr Cooper have not cooperated with the rest of the members of the applicant in progressing this native title claim. The uncontested evidence is that Ms Wyatt and Mr Cooper have failed to respond to requests from the legal representative of the rest of the members of the applicant to provide substantial connection evidence relating to their place in the claim group. Further, for a time Ms Wyatt and Mr Cooper sought to be separately represented in this proceeding. On 5 November 2007, the first five named members of the applicant (the applicant movers) filed a notice of motion seeking orders that Ms Wyatt and Mr Cooper be removed as applicants and that the Register of Native Title Claims be amended accordingly. The evidence relied on by the applicant movers comprises affidavits from Ms Sambo, one of the applicant movers, and Mr Shayne Daley, their solicitor. I issued a certificate under O 80 of the Federal Court Rules (the Rules) so that Ms Wyatt and Mr Cooper could have representation before the Court. Ms Wyatt and Mr Cooper did not read any affidavits. No claim group meeting has been held to authorise the removal of Ms Wyatt and Mr Cooper and to approve the applicant movers making this application for the replacement of the applicant, with a differently constituted applicant. Ms Sambo deposed that convening a claim group meeting of the Central West Native Title Claim group would involve considerable expense, time and other personal resources because members of the claim group live in places widely dispersed. Ms Sambo estimated that up to 300 members of the claim group live in South Australia or in areas of Western Australia from which they would need to travel for more than half a day to attend a claim group meeting, likely to be held in Kalgoorlie. These members would then need to arrange accommodation in Kalgoorlie. Ms Sambo also estimated that the direct costs of holding a meeting would range from $10,000 to upwards of $20,000, which would include notification and advertising costs, venue hire costs, meals, accommodation and fuel and travel expenses. She said that it would also be difficult for the claim group to organise a meeting and arrange the logistics. She noted that many of the applicants and their families do not have the resources to pay for these costs.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIOPIS J

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Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

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