Tommy on behalf of the Yinhawangka Gobawarrah v State of Western Australia

The matter before the Court involved an interlocutory application to either strike out or summarily dismiss an application for a determination of native title made by Tommy on behalf of the Yinhawangka Gobawarrah (YG) against the State of Western Australia. The dispute centred on whether the claim group was a "subgroup" and whether there was sufficient evidence of authorisation under section 61(4) of the Native Title Act 1993 (Cth). Additionally, the Jurruru respondents argued that the native title claim was an abuse of process and that there was no reasonable prospect of success.

The Court needed to decide if the YG applicant had provided adequate evidence of authorisation and if the claim should be dismissed due to the absence of such evidence. The Court also had to consider whether the native title claim was an abuse of process and whether there was a reasonable prospect of success for the YG applicant. The YG applicant argued that the Jurruru respondents' contention was unreasonable and that the authorisation question could be dealt with at trial. The Jurruru respondents maintained that the YG applicant had failed to provide adequate proof of authorisation and that the application should be dismissed.

The Court held that because the authorisation issue could be debated at trial and because the applicant had not been summarily dismissed on other grounds, the application for strike out could not succeed. The Court concluded that the proceeding and related Jurruru proceedings should be subject to further case management to conduct a trial as to who holds native title in the relevant claim area. The Court dismissed the application for strike out and referred the matter for further case management, with a view to conducting a trial as soon as possible.

ORDERS:
1. The application of the Jurruru respondents dated 7 June 2017 be dismissed.
2. This application be referred for further case management before a Registrar of the Court, with a view to a trial being conducted as to who holds native title in the relevant claim area at the earliest possible date.
3. If either of the YG applicant or the Jurruru respondents consider the Court should consider making any other consequential orders, they may propose any further such orders within 28 days, supported by written submissions, to which the other party may respond within seven days and the Court will determine, on the papers, whether any consequential orders should be made.