The Nyamal Palyku Proceeding (No 3) - [2021] FCA 215

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 2018

Judgment 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 2018

IN 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCA 215
Decision Date: 2 March 2021

CaseChat Overview and Summary

The Nyamal Palyku Proceeding (No 3) involved an application to dismiss a native title claim under section 190F of the Native Title Act 1993 (Cth). The applicant, who was not a party to the proceeding, sought the dismissal of a native title claim due to overlapping claims, internal conflict within the broader claim group, and a case management impasse. The court was required to determine whether the application should be dismissed under section 190F of the NTA, and whether dismissing the native title claim would advance the purposes of civil litigation under sections 37M and 37N of the Federal Court of Australia Act 1976 (Cth).

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.

Orders