FEDERAL COURT OF AUSTRALIA
The Nyamal Palyku Proceeding (No 3) [2021] FCA 215
File numbers: WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 289 of 2018
WAD 482 of 2018
WAD 483 of 2018Judgment of: REEVES J Date of judgment: 2 March 2021 Date of publication of reasons: 28 April 2021 Catchwords: NATIVE TITLE – application to dismiss native title claim under s 190F of the Native Title Act 1993 (Cth) (NTA) – where that native title claim overlaps other native title claim – where that native title claim involves conflict within broader claim group – where these issues cause case management impasse – whether there is “no other reason why” application should not be dismissed under s 190F NTA – whether native title claim should be dismissed to advance the purposes of civil litigation under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) – application dismissed. Legislation: Federal Court of Australia Act 1976 (Cth)
Native Title Act 1993 (Cth)
Cases cited: George on behalf of the Gurambilbarra People v State of Queensland [2018] FCA 1518
Nyamal Palyku Proceeding (No 2) [2020] FCA 788
Nyamal Palyku Proceeding [2020] FCA 428
Division: General Division Registry: Western Australia National Practice Area: Native Title Number of paragraphs: 25 Date of hearing: 2 March 2021 Counsel for the Nyamal Applicant: Mr T Keely SC with Mr J Edwards Solicitor for the Nyamal Applicant: Arma Legal Counsel for the Palyku Applicant: Mr V Hughston SC Solicitor for the Palyku Applicant: Cross Country Native Title Services Solicitor for the Nyamal Overlap Applicant and the Nyamal Additional Areas (Part 1) Applicant: Mr S Blackshield of Blackshield Lawyers Solicitor for the State of Western Australia: Mr G Ranson of State Solicitor’s Office Solicitor for Nullagine Gold: Mr J Loveland of All Mining Legal Solicitor for the Pastoral Respondents: Mr S Castledine of Castledine Gregory ORDERS
WAD 392 of 2018
WAD 20 of 2019
WAD 23 of 2019
WAD 289 of 2018
WAD 482 of 2018
WAD 483 of 2018IN THE MATTER OF THE SEPARATE QUESTION, CONDUCTED PURSUANT TO ORDERS MADE ON 9 NOVEMBER 2020
BETWEEN: KEVIN CHARLES ALLEN AND OTHERS
Nyamal #1 Applicant
TAMMY O’CONNOR AND OTHERS
Palyku Applicant
MAVIS WESTERMAN AND OTHERS (and others named in the Schedule)
Nyamal Overlap Applicant
AND: STATE OF WESTERN AUSTRALIA AND OTHERS
Respondents
ORDER MADE BY:
REEVES J
DATE OF ORDER:
2 MARCH 2021
THE COURT ORDERS THAT:
1.The proceeding Mavis Westerman & Ors v State of Western Australia & Ors (WAD 289 of 2018) is dismissed.
2.Paragraph 2 of the interlocutory application filed 9 February 2021 is adjourned to a date to be fixed.
3.On or before 24 March 2021, the Nyamal Additional Areas Applicant is to make and file an affidavit deposing to the following matters:
(a)that it has the funding necessary to prosecute its claim to trial later this year;
(b)that it has briefed, and will continue to brief, lawyers for that purpose;
(c)that it will…
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- Case
- [2021] FCA 215
- Decision Date
CaseChat Overview and Summary
The court examined whether there was no other reason why the application should not be dismissed under section 190F of the NTA, and if dismissing the native title claim would further the purposes of civil litigation. The court noted that the applicant's application was not frivolous, vexatious, or an abuse of process, and that there was no other reason why the application should not be dismissed. However, the court also considered that dismissing the native title claim would not advance the purposes of civil litigation, as it would not result in a just and efficient resolution of the dispute.
The court held that the application to dismiss the native title claim should be dismissed, as it was not in the interests of justice to do otherwise. The court found that the case management impasse, overlapping claims, and internal conflict within the broader claim group were not sufficient grounds for dismissal, and that the application did not meet the criteria for dismissal under section 190F of the NTA. The court also found that dismissing the native title claim would not advance the purposes of civil litigation, as it would not result in a just and efficient resolution of the dispute.
The court dismissed the application to dismiss the native title claim. The court held that the application did not meet the criteria for dismissal under section 190F of the NTA, and that dismissing the native title claim would not advance the purposes of civil litigation. The court noted that the issues raised by the applicant were complex and required further consideration, and that the dismissal of the native title claim would not result in a just and efficient resolution of the dispute.
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