Wonyabong v The State of Western Australia

[2008] FCA 1561

FEDERAL COURT OF AUSTRALIA

Wonyabong v The State of Western Australia [2008] FCA 1561

NATIVE TITLE - notice on Court’s own motion to show cause why application should not be dismissed pursuant to s 190F(6) of the Native Title Act (Cth) - where application not likely to be amended in a way that would lead to a different outcome once considered by the Registrar of the Native Title Tribunal - where no other reason why the application should not be dismissed - application dismissed

Native Title Act 1993 (Cth) ss 190A, 190E(1), 190F(1) and (6)

Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 cited

SHIRLEY WONYABONG and ORS v STATE OF WESTERN AUSTRALIA and ORS

WAD 6040 OF 1998

GILMOUR J
13 OCTOBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 6040 OF 1998

BETWEEN: SHIRLEY WONYABONG
HARVEY SCADDEN
KADO MUIR
GRAHAM NARRIER
Applicants

AND:

STATE OF WESTERN AUSTRALIA

AGNEW PASTORAL COMPANY PTY LTD
ALBION DOWNS PTY LTD
BHP BILLITON NICKEL WEST PTY LTD
SHIRE OF LEONORA
YEELIRRIE DEVELOPMENT CO PTY LTD
Respondents

JUDGE:	GILMOUR J
DATE OF ORDER:	13 OCTOBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The application be 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 6040 OF 1998

BETWEEN:

SHIRLEY WONYABONG
HARVEY SCADDEN
KADO MUIR
GRAHAM NARRIER
Applicants

AND:

STATE OF WESTERN AUSTRALIA

AGNEW PASTORAL COMPANY PTY LTD
ALBION DOWNS PTY LTD
BHP BILLITON NICKEL WEST PTY LTD
SHIRE OF LEONORA
YEELIRRIE DEVELOPMENT CO PTY LTD
Respondents

JUDGE:	GILMOUR J
DATE:	13 OCTOBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. On 13 October 2008 ex tempore reasons were given for dismissing the application.  The following are edited reasons.

   BACKGROUND

2. On 23 January 2008 a delegate of the Native Title Registrar decided pursuant to s 190A of the Native Title Act 1993 (Cth) (Native Title Act) not to accept the application for registration.

3. It was not submitted nor was there any evidence to suggest that since failing the registration test the Applicant has either applied to the National Native Tribunal pursuant to s 190E(1) of the Native Title Act for reconsideration of the Delegates decision or applied to the Court pursuant to s 190F(1) of the Native Title Act for the review of that decision. 

4. In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008.  Subsequent to this date and in light of the Full Court’s decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application.

   SECTION 190(F)(6) – SHOULD THE APPLICATION BE DISMISSED?

5. In deciding whether the application should be dismissed I have considered s 190F(6) of the Native Title Act, which provides as follows:

   The Court may, either on the application of a party or on its own motion, dismiss the application in which the claim was made … if:

   (a)the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

   (b)in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

6. There is no evidence, and it was not submitted by any party, that this application is likely to be amended at all, never mind in a way that would lead to a different outcome once considered by the Registrar of the National Native Title Tribunal. 

7. Insofar as the opinion of the Court is concerned, again there is nothing before the Court as to whether or not there is another reason why the application should not be dismissed.

8. The position of the Applicant is set out in a letter to the registrar of the Court dated 7 May 2008 in which the Court was advised by the representative Aboriginal/Torres Strait Islander body for the area, the Goldfields Land and Sea Council which acts for the Applicant in this matter, that it has not received instructions to make any submissions to the Court. That position remains the case at the time of the hearing of this matter. 

9. I am therefore of the view that the application should be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        21 October 2008

Solicitor for the Applicants:	Mr P Vincent
Counsel for the State of Western Australia:	Mr T Creewel
Solicitor for the State of Western Australia:	State Solicitors Office
Counsel for BHP Billiton Nickel West Pty Ltd	Ms L Burwood
Date of Hearing:	13 October 2008
Date of Judgment:	13 October 2008